Guardianship of Adults, P-20460

Guardianship

Adults

Division of Long Term Care

P-20460 (06/2011)

Acknowledgments

Funding for the writing of the 2010 version of this handbook was provided by the Wisconsin

Department of Health Services. It is based on an earlier handbook by the same name, written by Roy

Froemming and Betsy Abramson and published by the Wisconsin Department of Health and Family

Services in 1997. This revision has been made necessary by extensive changes in the guardianship

laws that became effective in December, 2006, and in the laws affecting durable financial powers of

attorney, which became effective in September, 2010.

In addition, this handbook draws on two other works related to decision-making support by

Roy Froemming: Making a Difference: Thinking about Decision-Making Support in the Transition

Process (Wisconsin Council on Developmental Disabilities, 2002); and Chapter 55: Application of

Wisconsin Adult Protective Services Law and Adults-at-Risk Related Statutes, (Wisconsin Department

of Health Services, 2007). The update to the material in Ch. V is based in part on materials developed

by Roy Froemming and Terri Johnson on planning for provision of decision-making support for

families of adults with mental illness, funded through a Graduate School Vilas Associates Award to

Dr. Jan S. Greenberg, School of Social Work, University of Wisconsin-Madison.

Disclaimers

This handbook is not intended as legal advice, and is not a guide to people who are trying to

bring guardianship petitions without an attorney. While it does try to describe the law in

understandable language, a handbook of this kind cannot cover every detail in the law itself, or provide

guidance on all the different situations that may arise in a guardianship case.

The opinions expressed in this book are those of the author, and do not represent policy

positions adopted by the Department of Health Services or any funder of previous work by the author.

Any errors are those of the author alone.

Table of Contents

I. INTRODUCTION...........................................................................................................................7

A. What is the purpose of this handbook, and who should read it? ..................................................7

B. What if the reader wants more detail, or legal citations? .............................................................7

C. How is the word person used in this book?..................................................................................7

D. Why is it important to think about decision-making as a functional skill, and to treat

guardianship as just one of many forms of support?....................................................................8



E. What is the definition of least restrictive?....................................................................................9

II. OVERVIEW OF GUARDIANSHIP...............................................................................................9

A. What is a guardian of an adult? ....................................................................................................9

B. What are the different kinds of guardians?.................................................................................10

C. What are the positive functional purposes of guardianship?......................................................11

D. What are the negative consequences of guardianship?...............................................................12

III. STANDARDS FOR APPOINTMENT OF A GUARDIAN BASED ON A FINDING OF

............................................................................................................................INCOMPETENCE

.......................................................................................................................................................13

A. What findings must a court make in deciding whether to appoint a guardian for an adult based..

on a finding of incompetence?....................................................................................................13

B. What is “evaluative capacity” and what is the functional test for need for guardianship? ........14

IV. HOW DOES THE COURT DETERMINE WHAT RIGHTS AND POWERS THE PERSON ......

............................................................KEEPS, AND WHAT POWERS THE GUARDIAN HAS?

.......................................................................................................................................................15



A. How does evaluative capacity affect the division of rights and powers?...................................15

B. What rights are retained by all adults who have guardians of the person?.................................16

C. What personal rights can be lost by a person who lacks capacity to exercise them, but cannot be

exercised by the guardian on the person’s behalf?.....................................................................17

D. What powers can be kept by the person, assigned by the court to the guardian of person, or

shared between the person and the guardian?.............................................................................18

E. What powers can either be kept by the person or assigned by the court to the guardian of estate?

....................................................................................................................................................20



V. FORMS OF DECISION-MAKING SUPPORT THAT MAY BE USED TO ENHANCE OR

.................................................................................... TAKE THE PLACE OF GUARDIANSHIP

.......................................................................................................................................................20

A. How and when should informal or voluntary forms of support be used to meet needs for

decision-making support?...........................................................................................................20

i) Build on the strength of informal support from family, friends and service providers.....20

ii) Assess the person's cooperativeness and ability to understand and consent. ....................21

iii) Consider the need for checks and balances or independent oversight...............................21

B. What tools can be used to provide decision-making support for managing money and property?

....................................................................................................................................................22



i) Restricted Bank Accounts..................................................................................................22

ii) Financial Power of Attorney..............................................................................................22

iii) Conservatorship ...................................................................................................................24

iv) Trusts....................................................................................................................................24

v) Representative Payment.....................................................................................................26

C. What tools can be used to provide decision-making support for health care and support service

decisions?....................................................................................................................................27

i) Releases of information.....................................................................................................27

ii) Standard health care powers of attorney, effective only if the person is incapacitated.....27

iii) Health care power of attorneys drafted to protect the person from refusal of treatment

during acute episodes of mental illness. ............................................................................29

iv) Health care power of attorneys drafted to be effective even when the person has capacity

to make his or her own health care decisions....................................................................29

v) Living Wills.......................................................................................................................29

vi) Do-Not-Resuscitate Orders................................................................................................30

vii) Powers of Attorney for Educational and Support Services...............................................31

VI. DECIDING WHETHER GUARDIANSHIP IS AN APPROPRIATE FORM OF RIGHTS

PROTECTION FOR THE PERSON, AND WHAT RIGHTS AND POWERS THE PERSON

CAN RETAIN. ..............................................................................................................................31



A. What kinds of problems are not likely to be solved by guardianship?.......................................31

B. What role can family and support team members play in assessment of decision-making

support needs before beginning the guardianship process?........................................................32

C. How should the person’s circumstances and preferences be considered in the decision as to

whether the person needs a guardian, and what powers the guardian should have?..................33



VII. CHOICE OF GUARDIAN............................................................................................................35

A. Who can serve as guardian or co-guardian of person, estate or both? .......................................35

B. What should the court consider in choosing the person or agency to act as guardian?..............35

C. Who has legal preference to be appointed guardian?.................................................................36

VIII.PROCEDURE FOR APPOINTMENT OF A GUARDIAN .........................................................37

A. Why are due process procedures required in all cases?..............................................................37

B. Why are the court forms important?...........................................................................................37

C. Who can act as the petitioner, what forms must the petitioner file, where and when? ..............37

D. What is notice of the proceeding, who gets it, and how is it given? ..........................................38

E. What is petitioner’s responsibility for filing statements of acts? ...............................................39

F. What is petitioner’s responsibility for obtaining a physician’s or psychologist’s report? .........39

G. Who is the guardian ad litem, and what is his or her role?.........................................................40

H. What rights does the person have in the guardianship process?.................................................41

I. What is the role of an interested person in the guardianship proceeding? .................................41

J. When must the hearing be held, and what happens at the hearing?...........................................42

K. Does the petitioner need an attorney to bring a guardianship action?........................................42

L. Who pays the costs of bringing a guardianship petition?...........................................................43

IX. DUTIES OF A GUARDIAN OF THE PERSON..........................................................................43

A. What standard is a guardian held to, in carrying out his or her duties, and when can the

guardian be sued? .......................................................................................................................43

B. Is the guardian responsible for supporting the person, or for providing direct care to the person?

....................................................................................................................................................43

C. What are the duties of a guardian of the person?........................................................................44

D. What duties does the guardian have to act in a way that is least restrictive of freedom and as

respectful of preferences as possible?.........................................................................................46

E. Under what conditions does a guardian have authority to make a decision that is contrary to the

person’s expressed wishes about where to live, choice of friends, use of birth control, sexual

activity and similar choices?.......................................................................................................46



X. POWERS AND DUTIES OF A GUARDIAN IN GIVING INFORMED CONSENT TO

PHYSICAL AND MENTAL HEALTH CARE............................................................................47

A. What is informed consent? .........................................................................................................47

B. What powers can the court give to the guardian related to giving informed consent to treatment

of physical health conditions? ....................................................................................................48



C. What power can be given to a guardian to consent to treatment or services related to the

person's mental illness, developmental disability, alcoholism or drug dependence?.................49



D. What are the guardian’s responsibilities in identifying the person’s health care needs, planning

for health care, monitoring care, and giving informed consent to treatment, including intrusive

or restrictive measures? ..............................................................................................................50

E. What special considerations apply to consent to plans that include use of seclusion, restraint or

restrictive measures?...................................................................................................................51

F. What power can be given to a guardian of person to refuse life-sustaining treatment, or to

consent to withdrawal of life-sustaining treatment?...................................................................52



XI. POWER TO DECIDE WHERE THE PERSON WILL LIVE, AND TO ADMIT THE PERSON

TO A RESIDENTIAL FACILITY OR INPATIENT TREATMENT FACILITY.......................53

A. What authority can be given to a guardian to determine where the person will live?................53

B. What authority can be given to a guardian to consent to admission to nursing homes and

residential facilities?...................................................................................................................53



C. What authority can be given to a guardian to consent to admission for inpatient psychiatric

treatment? ......................................................................................................................................54

XII. DECISIONS RELATED TO SEXUAL EXPRESSION, SEXUAL CONTACT AND

PROCREATION ...........................................................................................................................55

A. What power can be given to a guardian of the person to decide whether the person may or may

not have sexual contact with another person? ............................................................................55

B. What power can be given to a guardian of the person to consent on the person’s behalf to birth

control or abortion?.....................................................................................................................56

XIII.POWERS AND DUTIES OF A GUARDIAN OF THE ESTATE...............................................57

A. What standard is a guardian of estate held to, in carrying out his or her duties, and when is the

guardian personally responsible for costs?.................................................................................57

B. What are the powers and duties of a guardian of estate?............................................................57

C. How can guardianship of the estate be tailored to the person’s needs, and how can the guardian

continue to involve the person in management of property?......................................................60



D. How do the responsibilities of the guardian of person and guardian of estate overlap, and how

do they need to work together?...................................................................................................60

E. What are the guardian’s powers and duties in setting up accounts and investments, and in

buying and selling property? ......................................................................................................61



F. What is the guardian of estate’s responsibility to file an inventory?..........................................62

G. What are the responsibilities of the guardian of estate to keep track of the person’s property,

and account for the property to the court?..................................................................................62



H. What special rules apply to use and management of the estate if the person is married?..........63

I. When can a guardian of estate transfer resources to a trust for the person?...............................63

J. When can a guardian use funds to make gifts or provide support to other people?...................64

K. When can a guardian be reimbursed for expenses or be paid for his or her services as guardian?

....................................................................................................................................................65

L. When can a guardian charge the person for other kinds of services the guardian provides, or sell

things to the person?...................................................................................................................65

M. What is the guardian of estate’s responsibility when the person dies?.......................................66

XIV.COURT REVIEW OF NEED FOR GUARDIANSHIP AND PERFORMANCE OF THE

GUARDIAN..................................................................................................................................66



A. How can the rights of the person and the powers of the guardian be changed, to restore rights

and powers to the person, or to give more powers to the guardian? ..........................................66

B. When can a court order the guardian to carry out his or her responsibilities, or order removal

the guardian?...............................................................................................................................67

XV. RESPONDING TO ABUSE, NEGLECT, EXPOITATION AND VIOLATIONS OF RIGHTS 68

A. How does someone make reports of abuse, neglect, self-neglect or exploitation of a person

under guardianship?....................................................................................................................68

B. What if the guardian is suspected of participating in abuse, or tolerating abuse by someone

else? ............................................................................................................................................68

C. What is the guardian’s responsibility to advocate for the rights of a person in a licensed or

certified residential facility? .......................................................................................................69

D. What is the guardian’s responsibility in advocating for the rights of a person who is receiving

services or treatment for mental illness, developmental disabilities services, alcoholism or other

drug dependence? .......................................................................................................................70

XVI.RELATIONSHIP OF GUARDIANSHIP TO PROTECTICE PLACEMENT AND

COMMITMENT............................................................................................................................72

A. What are protective services?.....................................................................................................72

B. What is protective placement?....................................................................................................72

C. What is commitment, and how does it relate to guardianship?..................................................73

XVII. LEARNING MORE AND GETTING ADVOCACY OR LEGAL ASSISTANCE ...................73

A. How can the reader find court forms, and why are they important? ..........................................73

B. How can the reader learn more about guardianship, alternatives to guardianship and protective

services, or look up laws and rules? ...........................................................................................73



C. How can the reader learn more about community support services and public benefits

programs? ...................................................................................................................................75



D. How can the reader find resources and referral sources for legal assistance?............................76

E. What are some other websites of potential interest to guardians?..............................................76

INTRODUCTION

A. What is the purpose of this handbook, and who should read it?

This handbook provides an overview of guardianship of adults in Wisconsin who meet the

standards for a finding of incompetence, alternative ways of providing decision-making

support, and ways to tailor guardianships to individual needs. It also tries to respond to

questions that are often asked about the nature, purpose and effects of guardianship of adults,

about guardianship procedures, and about the powers and duties of guardians of adults. It is

aimed primarily at people involved in trying to assist adults who need support in decision-

making due to impairments in their ability to receive and process information, including family

members, advocates, support service providers, and educators. It is not legal advice or a guide

to bringing a guardianship action in court.

¾ NOTE: This handbook does not cover guardianships that are not based on a finding of

incompetence. These include guardianships of minors (people under age 18), and

guardianships of estate of persons found to be spendthrifts.

A major goal of this book is to help people see guardianship as just one tool in providing

decision-making support and protection of rights for people with disabilities, and not as the

only or final answer to providing assistance to a person who lacks capacity to make decisions

safely and effectively, or to understand and protect his or her own rights. In addition, it is

intended to help people design guardianships that are as unrestrictive as possible, and to

recognize the importance of involving a person under guardianship in decisions that affect his

or her life, not only because that is required by the law, but also because it is the best way to

respect the person as an adult in our society, and to develop and/or maintain the person’s

decision-making abilities.

B. What if the reader wants more detail, or legal citations?

This handbook does not, for the most part, include citations to statutes, rules and court cases.

Readers interested in more detail or in looking up the legal source material should refer to Roy

Froemming, Chapter 55: Application of Wisconsin Adult Protective Services Law and Adults-

at-Risk Related Statutes (Wisconsin Department of Health Services, 2007), available on the

DHS website at

http://dhs.wisconsin.gov/aps/training/Chapter55/chapter55manual.pdf. That

publication, referred to in this handbook as the Chapter 55 Manual, provides citations to legal

sources, information on where to find those sources, and more detail on potential remedies

where the person may be subject to abuse, neglect, or exploitation. There is detailed a table of

contents, with links to the chapter and subchapter headings. It is not available in print form.

See Part XVII for additional for additional sources of information, and links to source

materials.

NOTE: The table of contents, cross references in the text between parts of this book, and the

references to outside sources, are hyperlinked, to make it easier to find the reference.

C. How is the word person used in this book?

The statutes use the word “ward” for a person who has a guardian. Where a guardianship

petition has been filed saying that a person needs a guardian, he or she is often called a

“proposed ward” or “the subject of the petition.” To avoid referring to people by these legal

labels, this book refers to the adult who is in need of guardianship or some other kind of

decision-making support as “the person” or sometimes “the adult,” and tries to make clear by

the context if the word “person” is being used to refer to other individuals, corporations and/or

agencies.

D. Why is it important to think about decision-making as a functional skill, and to treat

guardianship as just one of many forms of support?

We have a shared view of the rights and responsibilities of adult citizens and residents of the

United States. The following statements, drawn from the Wisconsin Constitution and from a

Wisconsin Supreme Court case on rights of people under guardianship, apply to all members of

our society, regardless of mental disability:

• “All people are born equally free and independent, and have certain inherent rights; among

these are life, liberty and the pursuit of happiness …”

• There is a “common law right to self-determination,” under which “no right is held more

sacred, or is more carefully guarded…, than the right of every individual to the possession

and control of his own person, free from all restraint or interference of others, unless by clear

and unquestionable authority of law.”

• “[L]iberty of the person and control of one’s own property are very sacred rights which

should not be taken away or withheld except for very urgent reasons.”

The rights to liberty (freedom to control our own lives), to the pursuit of happiness (choosing

and seeking to reach our own goals in life), and to control our own property are central to our

idea of what it means to be an adult citizen or resident of the United States. Guardianship

restricts those rights, and labels the person as someone who does not have the full rights of

other adults.

The abilities to make decisions affecting a person’s life, to manage property, and to understand

and exercise rights are functional skills. Like other functional skills, a person can become better

at making decisions and exercising rights by receiving training and advice, and by having the

opportunity to use these skills in real-life situations. Similarly, a person will never improve his

or her skills, and is likely to lose skills, if he or she is excluded from decisions, or feels that his

or her involvement does not matter because it has no impact on what happens in his or her life.

Within a guardian’s areas of authority, the guardian makes the final decisions that affect the

person’s life. In other words, the guardian takes over and performs the task (making the

decision or exercising the right) for the person. This is more restrictive of the person’s right to

control his or her own life, and more likely to lead to loss of decision-making skills, than forms

of support which try to support the person to make decisions for himself or herself, and to

experience the consequences of those decisions. However, this level of restriction may be

necessary to protect the person from a serious risk of unacceptable harm.

Guardianship is a necessary form of support for some people and under some circumstances,

but it is important always to keep in mind the central importance of the rights involved, to

consider whether guardianship is the best form of support, and to consider whether it may be

Article 1, sec. 1, Wisconsin Constitution

State v. McGill, (2000)

In re Reed’s Guardianship, (1921)

doing more harm than good. Where guardianship is necessary, it is possible to exercise the

guardian’s powers in ways that that still allows the person to take part in decision-making.

E. What is the definition of least restrictive?

Throughout this book, courts (in creating guardianships) and guardians (in carrying them out)

are required to act in a way that is least restrictive. In addition, people receiving treatment and

support services for mental disabilities are entitled to receive treatment and support in the least

restrictive way consistent with their needs.

With respect to the guardianship order and the exercise of power by the guardian, least

restrictive means choosing the decision or approach which: (1) places the least possible

restriction on the person’s personal liberty and exercise of rights, and that promotes the greatest

possible integration of the person into his or her community; and (2) is consistent with meeting

his or her essential requirements for health, safety, habilitation, treatment, and recovery and

protecting him or her from abuse, neglect and financial exploitation. This balancing test

requires the court and guardian to weigh and strike a balance between the person’s interests in

health and safety, freedom from abuse, personal liberty, legal rights, community integration,

personal autonomy and choice, appropriate treatment and habilitation, and personal experience

and growth. The goal is not to eliminate all risk from the person’s life, but rather to protect the

person from decisions that he or she is not capable of making, and that would result in an

unacceptable risk of serious harm. (See Parts II.D, IX.D and IX.E, for more discussion of this

balancing test.)

In the context of placement for residential and other treatment and services, the goal should be

to choose the least restrictive setting in which the person's needs could effectively be met. In

addition to personal liberty issues and integration in the community, a service setting should be

analyzed in terms of the image of participants that it may present to others, and the extent to

which it allows the person to develop or retain skills that will be useful in real-life, community

situations.

In recent years, there has been a shift in the philosophy of long-term care towards a "support"

model. Under earlier ideas, people were often denied access to typical homes, communities and

experiences until they had received "treatment" in segregated facilities that made them "ready."

Unfortunately, in many cases the "treatment" never resulted in the skills needed to meet the

"readiness” test. Under a support model, the presumption is that a person should always be

supported to live in his or her own community and to have normal life experiences of personal

relationships, work, play, etc. This does not mean that services aimed at maintaining or

developing skills and abilities should not be provided, but that they should be provided in ways

that also support the person to have a normal life.

II. OVERVIEW OF GUARDIANSHIP

A. What is a guardian of an adult?

A guardian for an adult is a person or agency appointed by a court to act for an adult who has

been found to have a functional impairment in decision-making or communication that meets

the legal standard for a finding of incompetence (see Part

III). No person in Wisconsin is a

guardian for an adult unless appointed by a court, and no guardian has any powers over

an adult except those given by statutes and the court order.

Any person in Wisconsin over the age of 18 is legally an adult, and is presumed to be able to

manage his or her own financial affairs, choose where to live, consent to medical treatment,

vote, make contracts, marry, and exercise his or her own legal rights as an adult. This

presumption does not change because a person has a disability. The presumption that an adult is

competent to make his or her own decisions often comes as a surprise to family members, who

may find themselves with no legal right to be involved in, or even know about, care that a

relative is receiving. For example, family members may be refused information about the

person's needs and treatment because he or she is unable, or refuses, to give informed consent

to release of the information.

For guardianship orders issued since December 1, 2006 in Wisconsin, guardianships are

required to be tailored to the individual needs of the person, and to be as unrestrictive of the

person’s rights as possible. The court order creating the guardianship specifies the areas of

decision-making where the guardian has authority to act, and any restrictions the court has

imposed on the ability of the person to exercise rights. Therefore, even when it is determined

that guardianship is a necessary form of support, it is still necessary to think about what rights

the person can still exercise for himself or herself, and what powers the guardian really needs in

order to provide the person with protection from harm.

In the areas where authority has been given to the guardian under the court order, guardianship

takes away an adult’s right to make decisions for himself or herself. While one of the duties of

a guardian is to try to learn about and respect the person’s wishes (see Part IX.E), the final

authority to make decisions belongs to the guardian. However, a guardian’s authority is

primarily to make decisions, give consents, and act as an advocate. There are significant limits

on the ability of a guardian to force the person to cooperate with the guardian’s decision, if he

or she refuses or physically resists. (See Part VI.A, X.B, and XII.)

Because a guardian gets his or her powers from the state, a guardian is subject to the same

constitutional limits that control a state's power to interfere in the lives of its citizens. This

means that the guardian must have a compelling reason for interfering with the person’s

exercise of his or her constitutional rights. (See Parts IV.B and IX.E.)

The guardian has a strict duty to act always in the best interests of the person. (See Parts IX.A

and

XIII.A.) Because guardianship is created by the court, decisions by a guardian are always

subject to court review and supervision. (See Part

XIV.)

B. What are the different kinds of guardians?

There are two basic kinds of guardians, a guardian of the estate and a guardian of the person. A

court appoints a guardian of the estate for an adult who needs a guardian to make some or all

decisions related to his or her property or money, to sign contracts, or to represent the person in

a legal proceeding that has to do with money or property. A court appoints a guardian of the

person for a person who needs a guardian to make some or all decisions related to personal

decisions, such as decisions about medical care or support services, or about where to live. A

court may appoint the same person(s) as guardian of both the estate and the person, or the

responsibilities may be divided.

A temporary guardian is a guardian of either person or estate who is appointed for a limited

time. An order appointing a temporary guardian must specify the particular powers that the

temporary guardian has power to exercise. A temporary guardian may be appointed because

there is an immediate need for a guardian, while the procedure for appointing a permanent

guardian takes place. A temporary guardianship may also be useful where the only need for a

guardian is to carry out a single isolated act.

The court may also appoint a standby guardian for either a guardian of person or estate. A

standby guardian has no authority to act unless the guardian becomes either permanently or

temporarily unavailable. For example, if the guardian is going to be out of the country for an

extended period, the standby guardian can act as guardian while the permanent guardian is

away. If the guardian dies or resigns, the standby guardian will automatically be appointed to

become permanent guardian. The standby guardian must inform the court, and get court papers

recognizing his or her authority, when he or she begins to exercise the powers of a guardian.

A guardian appointed under a court order that was issued before December 1, 2006 may be

either a full or a limited guardian. This is because, until the law changed on December 1, 2006,

the person did not keep any rights, or any powers over any area of decision-making, unless the

judge made a specific finding in the order that the person was competent to exercise the right or

power. The result was that many people who could have exercised some rights or powers ended

up with full guardianships because the court simply found that the person met the standard for

incompetence, and never considered whether he or she still had the ability to make some

decisions or exercise some rights. Any court review of a pre-12/1/06 guardianship order

provides an opportunity to update the order so that it is more individualized in its treatment of

rights and powers.

C. What are the positive functional purposes of guardianship?

The major functions of a guardian of an adult include:

• Making decisions the person is unable to make for himself or herself, and giving consents

the person is not able to give.

• Exercising rights on behalf of the adult that the adult is unable to exercise for himself or

herself.

• Acting as an advocate for the adult's best interests.

• Taking action to protect the adult from abuse, neglect, self-neglect, financial exploitation

and violation of rights.

A person with the legal authority to act for the person as a court-appointed guardian can be an

essential form of support:

• Some people are genuinely unable to understand or assert their legal, civil and human

rights, and are at risk of being exploited or dominated by other people or by agencies and

institutions. The risk is particularly great where another person, group or institution is in a

position to intimidate or isolate the person. An advocate committed to the person can be an

essential bulwark against abuse, neglect and exploitation, and an essential support for the

person to have access to a real life. Often, that advocacy is only effective with the legal

access to information and the power to act for the person that guardianship confers.

• Access to needed services may depend on informed consent or legal capacity. For example,

a surgeon may refuse to perform elective surgery without informed consent, long-term

support services may require informed consent to a service plan, and access to or a landlord

to an apartment may require the capacity to sign a legally binding contract.

• Some people, even with the best support, will make decisions that place their health and

safety at unacceptable levels of risk. Where that is a result of mental disability that makes

the person unable to understand the risk or to take the risk into account in making decisions,

and other forms of support are not effective, a guardian may be necessary to protect the

person from serious harm.

D. What are the negative consequences of guardianship?

There is a powerful tendency on the part of the courts, the service system, and guardians

themselves, to overuse the power to make decisions for other people. Understanding the

reasons for this bias toward over-protection and its costs, can also help to guard against it.

Guardianship and other forms of substitute decision-making tend to be overused because:

• It can be more complicated and time-consuming to help a person who needs decision-

making support to understand and make a decision for him or herself, than it is to simply

have someone else make the decision for the person.

• Courts, service systems, and guardians often do not like risks. If risks are taken, and things

go wrong, this is likely to create more work in planning what to do next. People who are

seen as responsible for the person are more likely to be blamed when a risk is taken and

something “bad” happens, than when the person is denied any right to take risks.

Fears for the person’s safety are often based on real-life experience. However, family members

and others involved in the person’s life often overestimate the security that guardianship can

provide, fail to look to other forms of support that may provide better protection of both safety

and rights, and fail to consider the benefits of risk-taking, in terms of the learning opportunity

for the person in setting goals, trying new things, and learning from failures. To balance the

tendency towards over-protection, it is essential to keep in mind the costs of the overuse of

power to make decisions for another person:

• The process of establishing that a person is “incompetent” is often a painful one, because it

emphasizes the person’s incapacity, rather than his or her strengths.

• Where guardianship is ordered, the person may feel that he or she has been labeled as a

second-class citizen. A person found incompetent loses many basic, day-to-day rights, and

may feel a loss of dignity and respect because he or she must seek the consent and

assistance of another person for many activities that other people take for granted.

• Even where the person retains rights and powers, other people who learn that the person has

a guardian may simply assume that the person is totally incapacitated, and see the person as

less capable than he or she actually is.

• Loss of decision-making power reduces the person’s opportunity to learn to make choices,

and thus to develop or keep decision-making skills. We all learn by making mistakes. If a

person is denied the right to take risks, he or she is also denied the opportunity to learn and

grow. We all take risks in the hope of gaining something we value, and we all at times get

hurt in the process. If a person is denied the right to take risks, the person will never have

the opportunity to pursue aspirations that are not “sure things,” to learn the real-life limits

on what is possible—or to experience the joy of reaching goals others thought were

unrealistic.

• A person who has been taught to rely on and accept the decisions of others, and who is

unaware of his or her basic rights and of how to assert them, is at greater risk of abuse and

exploitation by others. If we want the person to be able to say “no” to others, we must

accept the inconvenient fact that he or she will sometimes say “no” to us.

• If someone else has power, the system and support circle are no longer challenged to

always look to the person as the decision-maker, and to find imaginative ways to support

him or her to understand choices and indicate preferences, and to engage in behavior that

may involve some risks.

• People can “learn” incapacity. A person who is used to having decisions made by someone

else is likely to lose self-confidence and see himself or herself as incapable of developing

decision-making skills.

• Substitute decision-making in an area where it is not needed creates extra work for the

decision-maker, who will feel responsible for any area where he or she has been given

authority, and creates fertile ground for unnecessary conflict. Guardianship should not be

imposed to protect the person from some risk of harm which, under his or her particular life

circumstances, he or she is not likely to experience.

III. STANDARDS FOR APPOINTMENT OF A GUARDIAN BASED ON A FINDING OF

INCOMPETENCE

A. What findings must a court make in deciding whether to appoint a guardian for an adult

based on a finding of incompetence?

Under the law in effect since December 1, 2006, the court must make a series of findings

before it can appoint a guardian for an adult based on a finding of incompetence. These

findings must all be based on convincing evidence in the court record. The findings are:

• Age. The person must be at least 17 years and 9 months old when the guardianship order is

issued. This allows the guardianship to be in place before the person becomes age 18. (The

petition can be filed no more than 90 days before the date that the order is issued. (See Part

VIII.C.)

• Presence of an impairment that fits a listed category. The court must decide that the

person has an impairment, and that the impairment fits one of four categories:

developmental disability, serious and persistent mental illness, degenerative brain

disorder, or other like incapacities. In all cases, the impairment must be one that results in

a substantial, long-term disability. A physical disability alone cannot be the basis of a

guardianship order, unless it makes the person unable to communicate. The presence of an

impairment is shown by an opinion provided by a doctor or a psychiatrist. The definitions

of the categories are on the standard court form that the doctor or psychologist is supposed

to use in preparing his or her report. (See Part

VIII.F.)

• Lack of evaluative capacity. The court must decide that, because of the impairment, the

person is unable to effectively evaluate information or to make or communicate

decisions about his or her personal health and safety (for guardianship of person) and/or

about protecting and using his or her property for his or her support (for guardianship of the

estate). (See Part

III.B.)

• Risk of harm. The court must decide that the person’s inability to make or communicate

decisions creates a serious risk of harm to the person. The risk of harm that must be shown

is different, depending on whether the petition is for guardianship of the person or

guardianship of estate:

o Guardianship of the person. To order guardianship of the person, the court must

find that the person, because of his or her inability to make decisions, is unable to

meet the essential requirements for his or her physical health and safety. This

requires a showing that serious physical injury or illness is likely to occur because

of the person’s inability to make or communicate decisions. For example, a risk to

physical health may result from inability to give informed consent to medical care, a

necessary requirement for access to non-emergency medical care.

o Guardianship of the estate. To order guardianship of the estate, the court must find

that, because of his or her inability to make decisions, the person has property that

will be lost or wasted; the person is unable to provide for his or her support; or that

the person is unable to protect himself or herself from being a victim of financial

exploitation.

• No less restrictive alternative under the individual circumstances. The court must

decide that it is not possible to meet the person’s need for assistance in decision-making or

communication in a less restrictive way, such as training, education, support services,

provision of health care or assistive devices, or reliance on advance planning that the person

has done for himself or herself. (See Part V.B and C.) In making this decision, the court

must consider the particular character and circumstances of the person, including whether

he or she would be likely to accept the alternatives, his or her social support network, and

special factors that may put the person at special risk. (See Part VI.A and D.)

B. What is “evaluative capacity” and what is the functional test for need for guardianship?

It is not the existence of an impairment by itself that results in a finding of need for

guardianship. Rather, the central issue for the court is the impact of the impairment on the

person’s functional ability to make decisions that are important to his or her health and safety.

Evaluative capacity is the functional ability to effectively take in and evaluate information,

and/or to use information to make decisions. The functional test for need for guardianship

requires a showing that the person lacks evaluative capacity to the extent that he or she is at risk

of serious harm. To meet this test, it is not enough to simply show that a person is old or has a

disability. It is also not enough to simply show that a person makes unusual decisions, or even

decisions that are not in his or her best interests. Lots of people act in ways that other people

think are unusual, and make decisions that other people think are bad. The opportunities to take

risks, make mistakes, and do things in our own ways are all part of the right to control our own

lives and property, and are important ways we all learn and grow throughout our lives. Under

the functional test, guardianship is based not on the quality of the decisions the person

makes, but on the process by which he or she makes and communicates the decision.

Incapacity may take one or more of the following three forms:

• Inability to understand essential information. A person may be considered unable to

effectively make decisions because he or she cannot understand the information needed to

make an informed decision. For example, for a person to make an informed decision about

medical care, he or she must be able to understand the risks and benefits of having (or not

having) the medical care. The issue is not what the person knows, but what the person could

learn, if the time and effort to were made to present the information in the way he or she is

most likely to be able to understand and use.

• Inability to use information to make decisions. A person may be able to learn and repeat

back information about risks and benefits, but then act in a way that does not take that

information into account, for example because he or she is acting out of an obsessive

compulsive disorder, or because he or she is experiencing delusions.

• Inability to communicate decisions. Very rarely, the issue is not the person’s ability to

make decisions, but rather his or her ability to communicate the decision. This should be

the basis for guardianship only if there is no alternative means of communication or

assistive device that could be used to enable effective communication.

While a person may have a permanent impairment, his or her incapacity to make decisions may

or may not be permanent. A person may gain a greater understanding about a type of decision

by being involved in that type of decision over time, so that he or she can regain partial control

over his or her life, or reach a stage where he or she no longer needs a guardian.

IV. HOW DOES THE COURT DETERMINE WHAT RIGHTS AND POWERS THE

PERSON KEEPS, AND WHAT POWERS THE GUARDIAN HAS?

Once a decision has been made (1) that the person has an impairment, (2) the person lacks

evaluative capacity so that he or she is at risk of harm, and (3) that guardianship is the

appropriate means of decision-making support, the court can appoint a guardian of person,

estate, or both. Under the law in effect since December 1, 2006, the court must then tailor its

order to the individual abilities and circumstances of the person, by determining what

rights and powers he or she will keep, what rights will be lost or be subject to veto by the

guardian, and what powers will be given to the guardian to exercise.

A. How does evaluative capacity affect the division of rights and powers?

In the case of each right and power, the first issue for the court is whether the person has

incapacity to exercise the right or make the decisions involved. A right or power may be lost or

transferred if the court finds that the person is unable to effectively receive and evaluate

information or to make or communicate a decision with respect to the exercise of that

particular right or power.

Incapacity to make decisions is not an all-or nothing concept. A person may be able to make

decisions over some parts of his or her life, but not others. The level of evaluative capacity

legally required to exercise a right or make a decision is different for different kinds of rights or

decisions. For example, a person who is incapable of giving informed consent to a complicated

medical procedure may well be capable of making a valid will, appointing an agent under a

power of attorney or consenting to sexual contact. In addition, a person may be only partially

incapacitated with respect to a particular right or area of decision-making. In that case, the

court has authority to allow the person to exercise a right, but only with consent of the

guardian, and to keep authority over some decisions in an area of decision-making, while the

guardian is given authority over other decisions in the same area of decision-making.

B. What rights are retained by all adults who have guardians of the person?

An adult who has a guardian of the person based on a finding of incompetence retains the

power to exercise certain rights. These rights are the same regardless of whether the

guardianship was created before or after December 1, 2006. The person does not need to

inform the guardian, or get the guardian’s consent, before exercising them. The retained rights

include:

• The right to communicate with the court and with government officials, including the

right to have input into plans for support services, the right to initiate grievances or

complaints about violations of rights, and the right to participate in administrative hearings

and court proceedings, to the extent he or she is able. For example, guardianship does not

prevent a person from being a witness; the judge and jury in particular cases must decide if

the testimony is useful and reliable.)

• The right to petition for court review of guardianship, protective services, protective

placement, or commitment orders. See Parts XIV and XVI.

• The right to communicate privately with a lawyer, and to ask an attorney for

representation. If there are fees, they must be paid from the income and assets of the

person, but payment of any fees is subject to court approval. For example, a court might

refuse to approve a fee if a lawyer represented the person on a claim that had no chance of

success.

• The right to communicate privately with rights advocacy agencies, including Disability

Rights Wisconsin and the state Board on Aging and Long-Term Care.

• The right to protest a placement in a residential facility, and to be discharged unless there

is an emergency placement or a proceeding resulting in court-ordered protective placement.

(See Parts XI.B and XVI.)

• The right to withhold certain consents and refuse treatment. Unless there is a court

order, consent of the person, in addition to the consent of the guardian, is required for

treatment for mental illness, developmental disabilities, alcoholism and drug dependence

that is considered experimental or drastic. (See Parts X.C and XV.D.) Individuals also have

the right to refuse medication and treatment for mental illness, unless medication or

treatment is necessary to prevent serious physical harm to the person or others, or the

person is found not competent to refuse. (See Parts

X.C and XI.C.)

• Any other rights specifically reserved to the individual by statute or the constitutions of

the state or the United States, including the rights to free speech, freedom of association,

and the free exercise of religious expression.

The last section makes clear that a person under guardianship keeps his or her constitutional

rights as a citizen. This does not mean that a guardian or court can never take an action that

overrules a person’s expressed choice regarding a constitutional right. The weight to be given

to a person’s choice in an area of protected rights will partly depend on his or her level of

understanding of the nature of the right and partly on the risks and consequences of the choice

he or she is making. If the court has found that the person does not have capacity to make a

decision, the guardian may overrule his or her wishes to prevent a serious threat to health and

safety. (See Part IX.E.)

The rights of the person overlap with the powers and duties that a guardian of the person may

have, such as the responsibility to take action to protect the person’s rights, and to act as an

advocate in court and administrative processes. It appears that these rights are shared, e.g.,

either the guardian or the individual can file a grievance alleging violation of a right.

C. What personal rights can be lost by a person who lacks capacity to exercise them, but

cannot be exercised by the guardian on the person’s behalf?

Certain rights are personal, meaning that they can only be exercised by a person who has

capacity to do so, and that they cannot be exercised by a guardian on the person’s behalf. As

part of the guardianship process, the court can decide that the person has incapacity to exercise

one of several listed rights that fall in this category, if there is evidence to support the finding of

incapacity. For some of these rights, the law recognizes that a person may have capacity to

exercise the right in some circumstances but not in others, and allows the court to give the

guardian a veto over exercise of the right. The listed rights in the statute are:

• Right to vote. The standard for incapacity to vote is that the person must be incapable of

understanding the purpose of an election. No person may be denied the right to vote on

grounds of incapacity unless a prior court determination of incapacity has been made.

• Right to execute a will. Courts have held that, in order to make a legally valid will, a

person must have the mental capacity to understand what he or she owns, whom he or she

might want to give things to, and the effect of the will he or she is signing.

• Right to serve on a jury. A juror must be able to understand the English language, and a

person may be excused from serving if he or she “cannot fulfill the responsibilities of a

juror.”

• Right to consent to marriage. Marriage is a contract, and both parties must be capable of

consent for a marriage to be valid. The test of capacity should be whether the person

understands the nature and consequences of marriage. If the right to marry is retained,

exercise of the right by the person can be made conditional on consent of the guardian.

• Right to apply for licenses, including a driver's license, hunting or fishing license, or a job-

related license or permit. A person who is found capable of applying may, of course, still

fail to qualify for the license itself. If the right to apply for licenses is retained, exercise of

the right by the person can be made conditional on consent of the guardian.

• Right to consent to sterilization. Under Wisconsin law, neither a guardian nor a court has

authority to consent on the person’s behalf to a procedure for the purpose of sterilization.

The only legal way that a person can undergo a procedure that is for the primary purpose of

sterilization is if he or she both (1) has capacity to consent and (2) actually gives a valid,

informed consent. The court may take away the right to consent if it finds that the person is

incapable of understanding the nature, risk, and benefits of sterilization, after the nature,

risk, and benefits have been presented in a form that the person is most likely to understand.

(This is the standard definition of informed consent for any medical treatment.) If the right

is retained, exercise of the right can be made conditional on consent of the guardian. For

discussion of consent to birth control and abortion, see Part

XII.B.

• The right to consent to organ donation. Under Wisconsin law, neither a guardian nor a

court can consent on behalf of the person to organ, tissue or bone marrow donation while

the person is living, unless there is evidence that the procedure would serve the interests of

the person. It is not clear what that evidence would be, but a strong personal relationship to

the recipient might meet this standard. If the court decides that the person does have

capacity to exercise this right, it can make exercise of the right conditional on consent of

the guardian.

¾ NOTE: Other important personal rights, such as the right to consent to involvement in sexual

activity, are not on this list. See Part

XII.A, for discussion of the responsibility of the guardian

with respect to those rights.

Except for the right to vote, the lack of a court finding of incapacity does not necessarily mean

that the person’s actual exercise of a retained right will be legally valid. Even if the court did

not have enough evidence to find that the person had incapacity at the time of the court hearing,

the exercise of the right will only be valid if the person has capacity to understand and

exercise the right at the time he or she exercises it. For some of the rights, it is difficult to

assess capacity outside of the context of an actual decision: many people will be able to express

an opinion about marriage, sterilization, or transplant surgery in the context of a real decision,

who could not discuss these issues in the abstract. If a right is retained, it will be important to

document the person’s capacity at the time of exercise, e.g., by having the person spend time

with a health professional, mental health counselor, or legal professional, who can then confirm

that the exercise of the right was voluntary, knowing and made with the necessary capacity. In

some cases, it may be most appropriate to return to the court for a specific finding of capacity

in the context of the actual decision.

D. What powers can be kept by the person, assigned by the court to the guardian of person,

or shared between the person and the guardian?

Under the law in effect since December 1, 2006, a court may authorize a guardian of the person

to exercise a power only if it finds, by clear and convincing evidence, that the person lacks

evaluative capacity to exercise the power. See Parts

III.B and IV.A, above. The court may

authorize the guardian of the person to exercise only those powers that are necessary to provide

for the individual's personal needs, safety, and rights. If a guardian is given authority to

exercise a power, the court may decide that the person has limited capacity to exercise the

power, and tailor its order to allow the person to retain power to make decisions that he or she

has evaluative capacity to make. For example, an order might allow a person to make routine

health care decisions, but authorize the guardian to make decisions about major surgery or

high-risk medications, or might reinforce the individual’s right to be involved in discussion of a

decision, even though the final decision is made by the guardian. The nature and extent of the

powers that can be given to the guardian, and the responsibility of the guardian in exercising

the powers, are discussed in more detail in Parts IX, X, XI, and XII.

Powers the guardian of the person can be authorized to exercise include:

• The powers to give informed consent to medical and mental health examination and

treatment and to choose providers of medical, social and/or supported living services.

(See Part X.)

• The power to give informed consent to medical examination and treatment over the

person’s objection. This power does not extend to power to consent to mental health

treatment over the person’s objection. (See Part X.C and XI.C.)

• The power to authorize participation in research or to consent to experimental

treatment. These powers require case-by-case court approval of consent under some

circumstances. (See Part X.B.).

• The powers to give informed consent to social and supported living services and to

make decisions about educational and vocational placement. For a person who needs

support services to live and participate in his or her community, such as Family Care,

Community Options, Community Integration, and Community Support Program services

active advocacy for appropriate services this is an essential part of the guardian’s role in

advocating for the person, and ensuring his or her right to least restrictive conditions. (See

Parts I.E, IX.C and D, and XVII.C.)

• The power to give informed consent to release of confidential records other than court,

treatment, and patient health care records, and to redisclosure as appropriate. (While it is

probably true under other laws that any guardian of person has authority to give informed

consent to release of court, treatment, and patient health care records, it is a good idea to

specify that in the order as an additional power.)

• The power to make decisions related to mobility and travel.

• The power to petition for divorce, annulment or legal separation if the person is

married.

• The power to receive all notices on behalf of the person. Notices that relate to property

should be directed, or passed on, to the guardian of estate. For a person who still has

capacity to receive notices, it may be a good idea for this power to be shared, so that both

the person and the guardian receive notices.

• The power to act as an advocate in proceedings, other than proceedings about the

person’s property. (See Part IX.C.)

• The power to petition for protective placement or commitment. It is not clear why this

power is listed; a guardian, as an interested person, always has authority to bring a petition

for protective services, placement or commitment.

• The power to have custody of the person. “Custody” of an adult is not defined, so it is not

clear exactly what it is. It is not the same as custody of a child. It implies an authority to

choose the person’s home, and possibly to limit the person’s freedom of movement and

social decisions, where necessary to protect the person from harm. It may be useful, for

example, if the person is missing and the guardian wants assistance from law enforcement

agencies in finding the person. If the guardian is concerned about authority over particular

kinds of decisions, it is probably more useful to specify the needed powers (see next bullet).

• Any other power the court may specifically identify. This is a good place to put guardian

power to release court, medical and treatment records, and any specific powers over

freedom of movement or social decisions needed to protect the person from harm. (See

Parts

IX.E, XI.A and XII.A.)

E. What powers can either be kept by the person or assigned by the court to the guardian of

estate?

An order for guardianship of the estate may only grant powers to the guardian that (1) are

necessary to provide for financial management and (2) are the least restrictive form of

intervention. Instead of a check-list of rights and powers that the person can keep (in whole or

in part), the order appointing a guardian of estate gives the court three options:

• Leave all powers and duties with the person, except specific powers given to the guardian

in the court order. The powers given to the guardian must be individually spelled out in

the order. This might be used, for example: when the person can handle his or her daily

affairs, but needs a guardian to manage large or complex property that he or she owns, such

as large investments or an interest in a business; when the guardian is needed only to sign

certain contracts on the person’s behalf; or when the guardian is needed to represent the

person about some specific claims.

• Give all powers to the guardian, except specific powers that the person keeps under the

court order. The powers the person keeps must be individually spelled out. Examples of

the kinds of powers that the person might keep include:

o Power to manage his or her earnings from work, income from public benefits, or from a

trust or annuity, that the person uses for personal expenses.

o Power to manage a checking account, up to a limited amount.

o Power to make contracts, for specific purposes or up to limited amounts. For example, the

person might be given power to sign his or her own lease for an apartment, up to a

maximum amount that he or she can afford.

• Give all powers to the guardian, with the person keeping no powers.

The original petition is a good time to consider whether to ask for additional special powers the

guardian may need, such as court approval for any business arrangement with the guardian,

authority to transfer the person’s resources to a trust, or authority to make gifts on the person’s

behalf, and to ask for approval of reimbursement of reasonable guardian expenses, and

reasonable compensation for the guardian. See Part

XIII.K and L .

V. FORMS OF DECISION-MAKING SUPPORT THAT MAY BE USED TO ENHANCE

OR TAKE THE PLACE OF GUARDIANSHIP

A. How and when should informal or voluntary forms of support be used to meet needs for

decision-making support?

i) Build on the strength of informal support from family, friends, and service

providers.

If the person has family or friends willing to play an active role in helping to make

decisions, a person who meets the legal standard for appointment of a guardian may be

able to function well without one, because he/she is able to know when help is needed

and how to seek it. A person whose finances are not complicated, who is not at risk of

exploitation, and who is willing to have some or all of his/her funds deposited into a

dual-signature checking account, or managed by an agent, often will not need a

financial guardian. A person who is willing to share important information and brings

major medical and service decisions to a support circle of family, friends and paid

support workers may not need a guardian of the person, or may only need one for

complex medical decisions. Even if guardianship is ordered, these kinds of support can

still serve the purpose of keeping the person involved in decisions, and making sure his

or her opinions and goals are taken into account.

For informal support systems to work effectively the person must be willing to accept

help and the people providing support must be willing to take the time and do the work

required to help the person gain needed experience, take in information in a form he or

she is most likely to understand, and overcome communication barriers. In addition, the

people providing the support must be working in the person’s interest. A system of

checks and balances may be helpful, because of the risk that an advisor or agent will use

the person’s trust to serve his or her own interests. (See Part VI.C.)

ii) Assess the person's cooperativeness and ability to understand and consent.

Some decision-making supports require that the person cooperate and have capacity to

act; others can be imposed without his/her consent. Voluntary forms of decision-making

support require that the person understand his or her need for assistance, be willing to

accept advice or help from others, and/or be willing to give the power to make certain

decisions to other people.

For more formal types of voluntary decision-making support, the person must also have

capacity to understand the nature and significance of the power he or she is assigning to

someone else. For example, a legal document giving another person power of attorney

is not valid if the person did not understand it when he or she signed it. The level of

understanding needed varies with the type of support involved.

iii) Consider the need for checks and balances or independent oversight.

Need for a decision-making support depends not only on a person's abilities and level of

cooperation but also on his/her personal situation. Some people who could clearly meet

the standards of legal incompetence are functioning well without a guardian. Others

who have greater skills may be in need of formal protection because they are highly

vulnerable.

In considering whether any form of decision-making support will adequately protect the

person, it is important to be alert for conflicts of interest. Family members may rely on

the person's income to maintain their household, or expect to inherit the person's money

if it is not used during his or her life. Service providers may act out of desire to

minimize their own workloads or expenses. It is not possible (or desirable) to eliminate

every conflict of interest, but it is important to see where they exist, and to try to reduce

any impact on the person.

A person is less likely to be dominated, or taken advantage of, if he or she has multiple

sources of support or advocacy that are independent of each other, e.g., both involved

family, and strong ties to service providers who respect the person’s right to have a say

in his or her life. If one family member is given authority to manage finances, it may be

a good idea for another family member to automatically get copies of financial records

and accounts. If the person is isolated, or if power over the person is concentrated in the

hands of one person or agency, the procedural protections and court oversight that a

guardianship provides may be necessary protections.

Heavy dependence on medical, social or mental health services may increase the

importance of having a guardianship or other authoritative outside advocate. Service-

providing agencies can be very powerful, and, unless the person has been able to plan

ahead to appoint a health care agent, a guardian may be the only means to provide

outside monitoring of how that power is used. This becomes particularly true in

services, such as institutions, that are isolated from the larger society and/or have the

potential to control every aspect of a person's life.

B. What tools can be used to provide decision-making support for managing money and

property?

i) Restricted Bank Accounts

Either of the following types of accounts can be set up fairly easily at most banks:

 Dual Signature Checking Accounts-- These accounts require that both the owner

of the account and a second person chosen by the person must sign any check before

it will be paid. Unlike a joint account, the second signer has no ownership of the

account, and no independent ability to withdraw funds from the account. A dual

signature checking account can be a very useful way of letting the person retain

responsibility and learn financial management while preventing major errors in

judgment. The person can say who will get the money in the account when he or she

dies by making out a will or transfer on death designation.

 Joint Accounts-- This option involves setting up a bank account with the person as

one owner, and another person as joint owner. Either person can then write checks

or withdraw money. The person can still make decisions, but can ask the other

person whose name on is on the account to help by doing shopping, cashing checks

or paying bills. There are several important reasons to be cautious in using this kind

of account:

o Under a joint account, if the person dies the other joint-owner of the account

becomes the owner of everything in the account, no matter what the person’s

estate plan or will may say. This may not be what the person wants.

o If the joint owner misuses funds, it may be difficult to prove because there is

typically no document defining his or her authority to use funds, and he or

she can argue that making him or her a joint owner was intended as a gift.

o The person will still have total access to the account, so this will not prevent

mismanagement, if he or she takes actions without first seeking advice.

o The act of creating a joint account may have serious consequences for a

person who receives SSI or Medicaid, because it will be treated as a gift to

the new joint owner.

ii) Financial Power of Attorney

If the person has capacity to understand what he or she is doing, he or she can create a

financial power of attorney, giving another person, called an agent, the power to

manage all or part of his or her finances or property. To create a valid power of

attorney, the person needs to have an understanding of his or her financial affairs,

capacity to select an agent, and an understanding of the nature of the powers he or she is

giving to the agent.

A financial power of attorney can give broad powers to manage all the person’s

finances, or can be limited only to certain property and powers. For example, an agent

could be given power to manage and rent out the person's real estate, or power to sign

checks drawn from a particular bank account. Certain special powers, like the power to

make gifts from the person’s resources, must be specifically spelled out, or the agent

will not have those powers. The simpler and more limited the powers given, the more

likely that a person with limited capacity will be able to understand and make a valid

decision to sign it.

An ordinary power of attorney can be withdrawn at any time and ends automatically if

the person becomes incapacitated. It is a useful way of getting help with management

tasks in the present, but it does not meet the needs of a person who is trying to plan

ahead for a future time when he or she may be incapacitated.

A durable power of attorney continues in effect even if the person who establishes it

later becomes incapacitated. It can also be written so that it only becomes effective

when the person becomes incapacitated. This gives a person a way of planning ahead to

provide a financial manager of his or her own choice if he or she is either temporarily or

permanently incapacitated. This can be used, e.g., by a person who has cyclic periods of

acute mental illness, or by any person who wants to plan ahead for the risk of brain

injury or dementia. The state legislature has adopted a standard form that people can use

to create a durable power of attorney. The form is available on-line from the state

Department of Health Services. (http://dhs.wisconsin.gov/forms/AdvDirectives/)

Wisconsin recently adopted a new law governing financial powers of attorney, effective

September 1, 2010, and a new standard state form. The new law provides detailed

descriptions of powers that can be automatically given to an agent just by giving the

agent general power over a particular area of decision-making, such as “real estate,”

“banking,” or “stocks and bonds.” To know exactly what powers he or she is and is not

giving to the agent, the person must read the detail in the statute about the powers the

agent will have under a general grant of authority. These are included in an appendix to

the standard state form. Under the new law, it is possible to use the standard state form

to limit or expand the general powers, and to give the agent special powers, like the

power to make gifts, and the power to change beneficiary designations in insurance

policies and other investments. To do this, the person must spell out the changes and

special powers in a separate section of the form called “Special Instructions.” This is

also a section the person can use to state in detail how he or she wants the power of

attorney to be used.

An agent has only the powers given by the creator of the power, and has a high legal

duty not to misuse those powers. The law requires an agent to:

• Act within the powers given by the principal.

• Act in good faith, and act loyally to the principal.

• Act consistently with known expectations of the principal, or in principal’s best

interests, if the principal’s expectations are not known.

• Act with care, competence and diligence.

• Keep records of money received and disbursed, and transactions completed for

principal.

Unlike a guardianship, however, there is no supervising court to oversee the

management and use of funds. One way to reduce the risk of abuse is to require that the

agent give regular accounts to another person.

iii) Conservatorship

If the person has capacity to understand that he or she needs help with financial

management, and to choose the person he or she wants as financial manager, he or she

can ask a court to appoint a conservator. A conservator has exactly the same powers

and responsibilities as a guardian of the estate. As with a guardianship, a

conservatorship can be limited so that the person retains some power to manage his own

finances, e.g., to manage his or her own earnings from work. (See Part XIII.C.)

A conservatorship is voluntary, so there is no finding of incompetence. The person can

ask the court to end the conservatorship at any time. The conservatorship will then be

continued only if the court holds a hearing, finds that the person is incompetent to

handle his or her finances, and appoints a guardian of the estate.

While the powers that a conservator can have are more limited than the powers a person

can give to an agent under a power of attorney, conservatorship has several potential

advantages:

• To create it, the person only needs to understand that he or she needs help with

financial management, and to name the person to provide it. The court order ensures

that there is no risk that the conservatorship will be found invalid, or questioned by

banks, landlords, etc.

• The court oversees the conservator, can require annual (or other) accounting, and

can review the conservator's actions as it would the actions of a guardian. See Part

XIV.

• Conservatorship does not establish that the person is not competent to sign

contracts. However, if businesses know that the person does not control his or her

own funds they may be less likely to make contracts with the person.

iv) Trusts

Under a trust, money and/or other property is transferred by one person, called the

grantor, to another person, called the trustee. The trustee has the duty to manage and

use the property for the benefit of the named beneficiary of the trust. The trustee has

legal control and management of the property, but is under a strict legal duty to manage

and use the property only in the ways permitted by the grantor in the trust document,

and only for the benefit of the named beneficiary. The trustee can be given broad

discretion, or the grantor can be very specific about how he or she wants the money

used, both while he or she is alive and after his or her death. The trust provides a way of

making resources available for the benefit of the beneficiary while leaving management

and decisions in the hands of the trustee. It also provides a way for the grantor to have

some assurance that his or her property will be used as he or she wishes, even when he

or she is no longer exercising direct control over it.

Trusts are very flexible, and are created for a wide variety of purposes. For example:

• A parent who wants to give money to benefit a minor child or a child with a

disability, or to leave money to the child in a will, can create a trust with the child as

a beneficiary. The trustee will then manage and invest the money, and use it for the

benefit of the child, in the way that the parent has directed in the trust document.

The parent can also direct where the money will go if there is any left in the trust

when the child dies.

• A person who is concerned that he or she may become incapacitated in future can

put his or her own money into a trust. He or she can manage the trust while he or

she is able to do so, but can appoint a successor trustee to manage the funds and use

them for the benefit of the person, if he or she does become incapacitated. In some

cases, even if the person is already incapacitated, a court will have authority to order

transfer of some or all of his or her property into a trust for his or her benefit.

• A special kind of trust called a supplemental needs trust or special needs trust can

be created so that it does not count as a resource for a person who relies on

Medicaid or Supplemental Security Income, and the resources can be used to benefit

the person in ways that do not replace or reduce benefits. (For more information on

these kinds of trusts, see Ch. VIII of One Step Ahead: Resource Planning for People

Who Rely on SSI and Medicaid, published by the Wisconsin Board for People with

Developmental Disabilities, which can be ordered or downloaded from their website

at: http://www.wi-bpdd.org/publications/pub_auth_details.cfm?pubID=74.)

Unlike guardianship or conservatorship, trusts affect only the assets that are specifically

transferred to trust ownership. A trust has no effect on resources that are given or left to

the person directly, and has no effect on the person’s ability to manage other funds or

property he or she may own.

There are several reasons why a family member might want to use a trust to hold

property he or she wants to set aside for a person who has difficulty managing his or her

own money, or why a person might want to use a trust to plan ahead for the possibility

that he or she might be incapacitated:

• The trust can ensure that property is only used for the intended purposes. In a

trust, the grantor can spell out in detail what the trustee can and cannot do with the

property, for as long as the trust exists. These instructions can be flexible, so that the

trustee can adjust use of the trust if the person’s circumstances or abilities change.

The grantor can also direct who will get the property, if any is left when the

beneficiary dies.

• A trust can provide support to manage the property and make decisions about

how to use it. Using a trust, rather than relying on a financial guardian, allows this

to happen without a court finding of incompetence, enables the grantor to choose the

trustee to manage the property, and allows the grantor to give the trustee greater

discretion (or less discretion) than a guardian would have in managing and using the

property.

• A trust can protect the beneficiary from losing the property to creditors,

through marriage, or through exploitation. A trust that is funded by someone

who is not the beneficiary can be written so that the beneficiary cannot sell,

mortgage or give away trust property, or lose it to creditors, and/or so that a spouse

does not have any rights to trust property. (It is not possible for a trust that is funded

by a person who names himself or herself as the beneficiary to give full protection

against his or her creditors.)

• A trust can be written to protect the person from actions during temporary

periods of incapacity. A person who has periods of incapacity or poor judgment

(such as periods of acute mental illness) can use a trust to protect all or part of his or

her property from his or her own actions, while keeping most of the control of the

property at other times. For example, he can limit his or her own right to take

property out of the trust, by setting limits on the amount that can be withdrawn, or

by providing for a waiting-period for withdrawals. Again, this may not protect trust

property from the person’s creditors.

Trusts are complicated to create and manage, and the advice of an attorney should be

obtained before creating a trust, especially if the beneficiary may ever need to rely on

Medicaid or SSI. The attorney should be familiar with the needs of people with

disabilities, the requirements of any public benefits for which the person may be

eligible, and Wisconsin law.

v) Representative Payment

If the Social Security Administration (SSA) decides that a person is incapable of

managing his or her Social Security or Supplemental Security Income (SSI) benefits, it

has the authority to appoint a "representative payee" to receive the checks on the

person’s behalf, and to manage and use the funds for the person’s support. SSA can

decide to do this on its own, or because someone else asks to be made payee. SSA will

usually base its decision on evidence from a physician or psychologist. No court action

is needed, and a hearing is held only if the person requests it. The person can appeal

both SSA’s finding that there is a need for representative payment and SSA’s decision

about who the payee will be. (Similar representative payment procedures exist for

Railroad Retirement and Veterans Administration benefits.)

The payee must hold funds for an adult in a separate account, make sure that benefits

are used first for the support and maintenance of the person, and meet SSA's reporting

requirements. A payee can use the money for things the person needs or wants, but only

after basic needs are met. This provides some assurance that the person’s basic source

of income for living expenses will be protected, and will be used to meet basic needs.

Representative payment does not give the payee any control over any other funds the

person may own, such as earnings from work or money received from an inheritance. It

may not be a sufficient protection if the person has substantial other income or

resources that are at risk of being mismanaged or lost, or if the person needs a legally

authorized substitute decision-maker to help with finances in other ways, e.g., to sign

contracts or assist with legal proceedings.

Representative payment does not directly take away the person's control over other

aspects of his or her life. On the other hand, control over a person's only source of

income can give a representative payee powers almost as great as a guardian's, without

many of the procedural protections. Accounting requirements are minimal, although the

government agency may require an accounting from the representative payee and can

investigate allegations of misuse of funds.

C. What tools can be used to provide decision-making support for health care and support

service decisions?

i) Releases of information

The simplest way that a person can involve someone else in helping with health care

decisions is by signing releases of information saying that he or she wants the other

person to have access to health care, support service and/or mental health treatment

records, and that he wants his or her health care and support service providers to talk to

the other person and involve the other person in discussions of treatment and care. It is

possible to write a blanket release that tries to apply to all providers at any time, but this

kind of release has to be carefully worded to meet state and federal law, and even then

may not be honored by all providers. It is more effective, even where the person has

signed a blanket release, to also fill out release forms for each specific provider. Health

care providers often have their own forms, which may be available on their websites,

and they will be most likely to accept their own forms. A general state form for release

of information about long-term support, state public benefits, and county-funded mental

health services is F-82009, available at: http://dhs.wisconsin.gov/forms/F8/F82009.pdf.

Any form that is intended to allow release of information related to treatment or support

services for mental illness, developmental disabilities, alcoholism or other drug

dependence should specify that on the form.

ii) Standard health care powers of attorney, effective only if the person is

incapacitated

A person who has capacity to understand what he or she is doing may create a health

care power of attorney (HCPOA). By signing the HCPOA, the person appoints another

person as health care agent to make health care decisions on his or her behalf, if he or

she is ever incapacitated. Under a standard HCPOA, the agent has no authority to act

for the person until he or she is incapacitated. The person is considered incapacitated if

two physicians (or one physician and one psychologist), based on personal

examinations, certify that he or she is incapable of making medical decisions for

himself or herself. Incapacity does not necessarily have to be permanent, and may result

from a temporary physical or mental illness.

Only one person can act as health care agent at any one time, but an alternate agent can

be named to act if the primary agent is unable to act. The agents(s) selected should be

people who know the principal well, such as friends or family members. A health care

agent may not be a health care provider for the person, or the spouse or employee of a

health care provider, unless he or she is also a relative of the person. The signing of the

HCPOA must be witnessed, and there are restrictions on who can be a witness.

The HCPOA document must specify what authority the agent will have to make

decisions regarding admitting the principal to a nursing home or community-based

residential facility for a long-term stay, withholding or withdrawing feeding tubes, or

continuing to make decisions if the principal later becomes pregnant. If these items are

left blank, the health care agent will not have authority to make these decisions.

In making decisions under a Power of Attorney for Health Care, the agent’s job is to try

to make the decision that the principal would have made if he or she had capacity. It is

very important that the agent know the principal well, and that the agent spend time

talking to the principal about his or her preferences regarding health care under different

circumstances that might arise. The principal can also write out instructions or

guidelines, in the HCPOA or in a separate memo or letter. Some useful suggestions on

things to discuss are available on the website of the Coalition of Wisconsin Aging

Groups, www.cwag.org, and in a publication of the State Bar of Wisconsin called A Gift

to Your Family, available on their website, www.wisbar.org.

Because of the importance and complexity of the decisions involved, a person must

have a fairly high degree of understanding to create a valid HCPOA. If the person is

already too incapacitated to make health care decisions, it is likely that he or she is also

too incapacitated to create a valid HCPOA.

The HCPOA is the most comprehensive health care advance planning alternative. The

Living Will, discussed below, is limited to situations where the person is in a persistent

vegetative state or has a terminal condition, and only applies to life-sustaining treatment

and feeding tubes. A Power of Attorney for Health Care can give the agent authority

regarding virtually any physical health treatment and most mental health treatments. It

can also give the agent broader authority than a guardian would have to follow the

person’s wishes regarding withholding or withdrawal of life-sustaining treatment.

Even when the person is found to be incapacitated, the agent is required to try to

involve the person in decisions and follow his or her wishes to the extent possible. The

authority of an agent is primarily to consent, rather than to compel the person to accept

treatment, and it may not be effective if the person protests a treatment that the agent

has consented to. The law is not clear on whether the principal still has a power to

revoke the HCPOA, even after he or she has been declared incapacitated.

An agent under a health care power of attorney cannot be authorized to consent to

admission to a mental health treatment institution for a person who is incapacitated. The

health care agent can, if authorized, consent to other kinds of mental health treatment.

However, as noted above, an ordinary health care power of attorney would not give the

agent authority to require treatment over the person’s protest, or in a situation where the

person says that he or she wants to revoke the agent’s authority, and the treatment

provider determines that the revocation is valid. See item (iii), below, for a way to try to

deal with these issues.

The state has published a standard form that people can use to create an HCPOA. To

receive a copy of the Power of Attorney for Health Care, send a self-addressed envelope

to: Wisconsin DHS, Division of Public Health, P.O. Box 309, Madison, WI 53701-

0309, or print it off the internet at http://dhs.wisconsin.gov/forms/AdvDirectives/. There

is no requirement that the standard form be used, and it is also possible to ask an

attorney to draft an individualized HCPOA to carry out specific wishes. A commonly-

used form is contained in the booklet A Gift to Your Family, mentioned above, and

includes an optional addendum form to express wishes on when the person would or

would not want continued treatment.

Even where the person has an agent appointed under a health care power of attorney, it

is important that he or she also give the agent releases of information (see item (i),

above), if the person wants the agent involved in helping with health care decisions

before the person is incapacitated. This is necessary because the health care power of

attorney does not give the agent any powers or access to information until the person is

incapacitated.

iii) Health care power of attorneys drafted to protect the person from refusal of

treatment during acute episodes of mental illness.

A person with mental illness or another condition that may cause cyclic periods of acute

illness can sign a very specific HCPOA that states that, when he or she is in an acute

phase of his or her illness, he or she wants to be considered incapacitated, and wants the

agent to be able to consent to particular forms of care, over his or her objection, and

giving up the right to revoke when he or she is incapacitated by mental illness. It is

useful for the person to state that this is based on his or her past experience of what he

or she needs under the circumstances, that he or she is aware of his or her rights to

refuse and revoke, and deliberately wants to waive those rights in limited

circumstances. While there is no specific provision for this kind of HCPOA in the law,

these provisions in HCPOAs (called “Ulysses clauses”) have been effective in many

cases in getting people treatment without requiring commitment, especially where there

is a strong, trusting relationship between the person, his or her family, and the treating

professionals.

iv) Health care power of attorneys drafted to be effective even when the person has

capacity to make his or her own health care decisions.

A person may want to appoint an agent to make health care decisions even when he or

she is not incapacitated, either because he or she feels too ill to make decisions, because

making decisions is too burdensome due to communication barriers, or simply because

the person trusts someone else to make good decisions on his or her behalf. In that case,

the person can sign a health care power of attorney that states that it is effective

immediately, and remains in effect regardless of whether he or she is incapacitated. This

kind of power of attorney will usually state that the person always has the right to be

involved to the extent he or she wishes, and that, if he or she states an opinion, that

opinion will control over the decision of his or her agent, unless he or she has included

the kind of “Ulysses clause” discussed in the last section. Again, the statute does not

clearly recognize this kind of health care power of attorney, but they are effective in

practice where there is a strong, trusting relationship between the person, his or her

family, and the treating professionals.

v) Living Wills

Also known as the "Declaration to Physicians," a Living Will is a state form that an

individual can fill out indicating that he or she does or does not want life-sustaining

treatment and/or feeding tubes used if the signer is ever in: (1) a persistent vegetative

state

or (2) a terminal condition with death imminent. It does not appoint an agent or

anyone else to make decisions for the person. Rather, it is a statement from the signer to

physicians telling the physicians that the signer does or does not want these treatments

if ever diagnosed by two physicians to have one of these conditions. A person must

have capacity to understand the medical decisions involved in order to complete a valid

Living Will.

While the Living Will is an excellent and simple tool for these situations, it is less

comprehensive than the Power of Attorney for Health Care (see above). Individuals

may complete both documents, taking care that they do not conflict with each other. To

receive a copy of the Living Will, send a self-addressed envelope to: Wisconsin

Department of Health Services, Division of Public Health, P.O. Box 309, Madison, WI

53701-0309, or print it off the internet at

http://dhs.wisconsin.gov/forms/AdvDirectives/. A Living Will form is also provided in

A Gift to Your Family, available on the State Bar of Wisconsin website,

www.wisbar.org.

vi) Do-Not-Resuscitate Orders

A Do-Not-Resuscitate (DNR) Order is a physician’s written order, directing emergency

medical technicians, first responders and emergency health care facilities not to attempt

cardiopulmonary resuscitation on a person for whom the order is issued if that person

suffers cardiac or respiratory arrest. Other types of DNR orders (e.g., those that apply in

in-patient hospital settings or in nursing homes) are not covered under this law.

A competent person may request a DNR Order from his or her physician, or a guardian

or agent may request a DNR order on behalf of the person. A DNR order may only be

issued by a physician and then only when the person is a qualified patient. Under the

statutes, a qualified patient is a person who:

 Is age 18 or over;

 Has a medical condition such that, were the person to suffer cardiac or pulmonary

failure, resuscitation would be unsuccessful in restoring cardiac or respiratory

function or the person would experience repeated cardiac or pulmonary failure

within a short period before death occurs; and

 Has a medical condition such that, were the person to suffer cardiac or pulmonary

failure, resuscitation of that person would cause significant physical pain or harm

that would outweigh the possibility that resuscitation would successfully restore

cardiac or respiratory function for an indefinite period of time.

The physician must provide the patient with written information about the resuscitation

procedures that the patient has chosen not to have, and about how the patient can revoke

the document. After providing this information, the attending physician or a person

directed by the attending physician is required to put a Do-Not-Resuscitate Bracelet on

the patient's wrist and document in the patient's medical record the specific medical

condition that qualifies the patient for the order.

To receive more information about Do Not Resuscitate orders, write to: Wisconsin

DHS, Division of Health, P.O. Box 309, Madison, WI 53701-0309, or find it on the

internet at http://dhs.wisconsin.gov/ems/EMSsection/DNR.htm.

vii) Powers of Attorney for Educational and Support Services

Unlike the health care power of attorney, there is no state law concerning a person’s

ability to use a power of attorney to appoint an agent to make decisions about

educational services and non-health-care support services, such as in-home supports and

vocational support services. There is no legal reason why an adult who has capacity to

understand what he is signing cannot appoint an agent for this purpose, but it may or

may not be fully accepted by the school or support service agencies involved. Any

power of attorney of this kind should include releases of both written and oral

information and a specific request the agent to be involved in planning meetings

concerning the person’s education and/or support services. Even if the person must

ultimately be the one to sign the individual educational or service plan, he can rely on

this or her agent for advocacy in the planning process, and for advice on what to request

in the plan.

VI. DECIDING WHETHER GUARDIANSHIP IS AN APPROPRIATE FORM OF RIGHTS

PROTECTION FOR THE PERSON, AND WHAT RIGHTS AND POWERS THE

PERSON CAN RETAIN.

¾ NOTE: The potential positive and negative consequences of guardianship are discussed in

Part II.C and D, above. Other forms of support that may reduce or eliminate the need for a

guardian to have or use court-ordered power to make decisions are discussed in Part V, above.

A. What kinds of problems are not likely to be solved by guardianship?

In some cases, it will be legally possible to get guardianship of the person, and legal power

over a decision, and yet not be able to make a real difference in the person’s life. It is always

worth considering whether guardianship, even if available, is going to be a useful tool for

solving a problem, and whether it may do more harm than good. Where a person who is

engaging in risky behavior understands the nature of a decision or right and has a strong desire

to be in control of decisions, guardianship is not only inappropriate, it is also unlikely to be

effective in reducing the risk of harm and may undermine relationships so that voluntary

cooperation becomes unlikely.

Even where the person lacks capacity to make an informed decision, guardianship is not likely

to be an effective tool to protect a person from harm, where the person has the determination

and practical ability to continue to engage in risky behaviors, such as associating with poorly-

chosen friends, or engaging in risky sexual behavior, despite the objection of the guardian. This

is because guardianship is primarily a form of decision-making support and substitute consent,

not a way of forcing the person to engage (or not engage) in particular behaviors. Sometimes,

the court order by itself will persuade the person to follow the guardian’s decisions. In other

cases, it is important to consider whether there will be any practical way of enforcing the

guardian’s authority over a person who is likely to resist, before putting the relationship

through the strain of a court battle and a process of labeling the person incompetent.

Where the risk of harm is created for the person because he or she has a mental illness and is

refusing medication or other treatment, guardianship may not resolve the problem, because

guardianship alone does not overcome the right to refuse treatment for mental illness. (See Part

X.C.) Where the person is likely to continue to refuse treatment, commitment for treatment

under

Wis. Stat. , Ch. 51, together with a request that the person be found incompetent to refuse

treatment, may be a more effective form of intervention. (See Part

XVI.C.)

B. What role can family and support team members play in assessment of decision-making

support needs before beginning the guardianship process?

In the guardianship process, the court’s finding of incompetence and the court’s decisions about

what rights and powers the person will keep are largely based on the opinions of the physician

or psychologist who prepared the report in support of the guardianship (See Part VIII.F),

especially if the case is not contested. However, the physician or psychologist typically has

only limited contact with the person, in an artificial environment, and he or she is likely to rely

on the opinion of the family and other people who work with the person and know him or her

well, in deciding what decision-making supports are needed and appropriate. Similarly, an

attorney who helps to draft the petition is going to depend on the petitioner for guidance on

what to ask for in the petition.

Knowledge of the person's day to day needs, wishes and functioning skills, and of the practical

issues he or she is likely to face in his or her life, are at least as important in determining his or

her ability to make decisions as medical or psychological expertise. Accordingly, before

beginning the guardianship process, it is useful for the family, and/or other people who know

the person well, such as teachers and support service providers, to develop information and

recommendations about the person’s functional abilities and needs for decision-making

support. This can be the basis of what the petitioner will ask the attorney to put in the petition,

and if appropriate, results of the discussion can also be given to the physician or psychologist

completing the report to the court, so that the report is informed by this information as well as

by the medical or psychological evaluation and history.

For some people, and some powers, it may be obvious that the person can or cannot safely

exercise a particular right or power. For others, who still have capacity to make some decisions,

or who may gain skills as time goes on, it is worth spending time considering the rights and

powers that he or she can keep. Below is a process that can be used in thinking this through.

The first step in the process is to identify the areas in which the family and/or support team

believes the person may need support, either in making decisions or in asserting or defending

personal rights. The rights and functional decision-making issues listed on the petition are a

good place to start in making this list (see Part IV.), but there may be other concerns that are

not on the petition, such as decisions related to sexual activity (see Part

XII) or choice of

associates. Then, for each of the functional areas, the family and/or support team should try to

answer these questions:

• Importance in person’s life. What decisions or threats to his or her rights does the person

face in this issue area? What decisions or threats is he or she likely to face in the future?

Are these central to protecting him or her from harm, or in helping him or her to have the

life he or she wants?

• Evaluative capacity. Is the person able to understand significant information on the nature,

risks and benefits of the various options, or on the nature and significance of his or her

rights, if explained in a form the person is most likely to understand? Is the person able to

use that information in making rational decisions that affect his or her life?

• Level of risk. If the person has a significant lack of evaluative capacity, what level of risk

to health, safety, rights, possessions and access to a desired life results from his or her

inability to make informed decisions or understand and assert rights?

• Training and experience. Has the person had the opportunity to develop or regain

decision-making capacity through training and practice? Has the person had needed

evaluation and support to develop or regain a functional means of communication? Has the

person had a base of experience needed to make decisions or understand his or her rights? If

not, would skill-building or greater experience be likely to help develop, maintain or restore

decision-making ability?

• Informal support. Does the person have a strong informal network of support committed

to identifying and realizing his or her preferences, hopes and dreams? If so, is the person

able and willing to work with this network of support in a way that will allow decisions to

be made on a cooperative basis without use of guardianship? If informal support is an

option, is it likely to be more or less respectful of the person’s voice than a guardian would

be?

• Alternative tools of support. Can the person’s need for support be met through the use of

alternatives such as dual-signature checking and powers of attorney?

• Guardianship as a solution. Is shifting power to a guardian likely to help reduce the risk

of harm? Do the benefits of shifting power to the guardian outweigh the costs?

• Retaining partial authority. If guardianship is appropriate, how should the guardian’s

power be limited to cover only those decisions and rights where the risks justify the use of

guardianship?

C. How should the person’s circumstances and preferences be considered in the decision as

to whether the person needs a guardian, and what powers the guardian should have?

Whether a person needs a guardian depends not only on his or her evaluative capacity, but also

on his or her personal situation. Some people who could meet the legal test for needing a

guardian may have needs for decision-making support that are already being met in other ways,

or could be better met in other ways. Others may be at special risk of harm, and may need a

high degree of protection. These considerations are important in considering both whether to

petition for guardianship, and what to ask for in the petition. The law requires the court to

consider individual circumstances, and any interested person can bring them to the attention of

the guardian ad litem or court, to help ensure that the guardianship order is tailored to meet the

person’s individual needs.

Some individual circumstances that may affect the need for guardianship and the level and type

of guardianship needed include:

• Whether the person has other reliable resources to assist the person in meeting personal

needs or managing property, and whether these are less restrictive. (See Part V.A and

VI.C.) Resources can include paid or unpaid help, and voluntary or involuntary forms of

decision-making support. It is important to know whether support providers (paid or

unpaid) are respectful of the person’s rights and preferences, and whether risk factors for

abuse are present (see next bullet).

• Whether the person is at risk of abuse, exploitation, neglect, or violation of rights. A

person may be at higher risk because he or she is isolated, is dependent on a single

individual or agency for support, is supported by other people who have conflicts of

interest, and/or because he or she is not able to recognize and protect against abuse and

exploitation. (See Part VI.C.) These risks can often be reduced if there are there are checks

and balances in the person’s life, so that no one person or agency has control of the person.

A person with less severe impairments may be at higher risk because he or she is more

mobile and more likely to engage in risky behavior.

• Whether the person understands the nature of his or her disability and the risks it may

create, and is able and willing to seek help when risks arise.

• Whether the person can meet or arrange for others to meet basic needs for an adequate

diet, health care, personal care and a safe and healthy place to live. If resources are not

available, the person may need an advocate to help get access to needed services.

• Whether the person has a high level of support and treatment needs. Dependence on

other people for intense supports may bring with it a greater need for assistance with the

decision-making involved in choosing providers and planning services. Support providers

can have a lot of power in the person’s life, and a guardian may be a means to provide

outside monitoring of how that power is used, and an outside voice to assert the person’s

rights. This is particularly true of services, such as institutions, that are isolated from the

larger society and/or have the potential to control every aspect of a person's life. While

family caregivers are often also the most appropriate guardians, consideration should be

given to whether appointing a caregiver as guardian may have the effect of over-

concentrating power in a single individual.

• Whether the person has been competent in the past and has done advance planning for

financial and health care decision making. (See Part V.B.ii) and V.C, above.) Examples

of advance planning include a durable power of attorney for management of property, a

power of attorney for health care, or a trust to provide property management. Advance

planning can eliminate or reduce the need for a guardian, and can provide guidance to a

guardian in determining what decisions are in the person’s best interests, as he or she

herself saw them. (See Part X.F.) Preserving the advance directives, if possible, is

important because the person can give authority to an agent that a guardian may not have.

Where guardianship is ordered, the order can also be written to preserve all or part of the

advance planning, or to ensure that the guardian has authority to follow the wishes

expressed in the advance planning.

• The nature and extent of person’s property and financial affairs. Greater wealth and

complexity of affairs will require more skill in management. On the other hand, it may also

mean that the person can afford some risk of loss, so that he or she can continue to manage

at least part of his or her finances.

• The person’s personal preferences, desires and values. The goals of a guardianship

should be those of the person, consistent with protecting the person from abuse,

exploitation and neglect, and not the goals imposed by society or family. The way a person

has lived and used his or her property before becoming incapacitated provides a guide for

how he or she most likely wishes to continue to live.

• Whether the person has a physical illness, and whether it can be treated effectively. If the

person’s incapacity is a result of a temporary or treatable physical illness, it may mean that

no guardian, or only a temporary guardian, is needed. Some physical health conditions,

including common illnesses like flu and urinary tract infections, can produce temporary

incapacity, especially in a person who is already debilitated. On the other hand, the risk

created by a decision-making impairment may be a much greater for someone with a

complex illness that requires careful monitoring, or a strict treatment regimen.

• Whether the person has mental illness, alcoholism, or other drug dependence and the

chances for improvement. These conditions are often treatable, and may be better dealt with

through a Ch. 51 commitment instead of, or in addition to, guardianship. (See Part

XVI.C.)

In other cases, long-term mental illness may be grounds for guardianship. Long-term

substance abuse may also result in permanent brain damage and need for guardianship.

• Whether the person is experiencing effects of medication. A person’s actual evaluative

capacity may be masked (or enhanced) by the effects of medication. Need for guardianship

may be increased if taking medication is essential to health or safety, or if the medications

themselves, if taken inappropriately or abused, create a risk to health and safety.

VII. CHOICE OF GUARDIAN

A. Who can serve as guardian or co-guardian of person, estate or both?

With very few restrictions, a court can appoint any adult to serve as guardian of either person or

estate of the person. The court can appoint the same person as guardian of both person and

estate, or can divide the responsibilities between two people. Certain nonprofit corporations and

associations may be appointed by the court, if they have been found by the Department of

Health Services to meet the DHS rules governing corporate guardians. A court should appoint a

corporation or association only if no suitable individual is available.

The court can appoint any two people to act as co-guardians, and can specify in the order

whether the co-guardians must join in decisions, or can act independently. Having co-guardians

helps to protect against conflicts of interest and may improve decision-making, because of the

legal authority of the co-guardians to monitor each other. Having guardians who can act

independently divides the workload, and helps to ensure that someone will be available when a

guardian is needed. It is also possible to split guardianship, appointing as guardian of the

person a relative or friend familiar with the person's needs, and as guardian of the estate a

person skilled in financial management.

There are a few absolute restrictions on who may be appointed guardian. No individual can be

a guardian for more than 5 people. No person or agency who is a provider of protective services

or protective placement to the individual may act as guardian.

B. What should the court consider in choosing the person or agency to act as guardian?

The decision of the court as to the person(s) chosen to act as guardian is made based on the best

interests of the person. No one has a right or absolute claim to be guardian. The statute provides

for several preferences (see next section), and the court must consider the opinions of the

person and of his or her family, but the court does not have to follow a preference if it finds that

it would not be in the person’s best interests. The court must consider any conflicts of interest

(such as employment of the proposed guardian by a service provider), but the court may

appoint a person who has a conflict of interest if the appointment remains in the person’s best

interests despite the conflict.

The guardian should be someone who is, or is willing to become, familiar with the person's

needs and situation and who will keep in frequent contact with the person. The most important

issues are whether the person will be able to effectively carry out the powers and duties of the

guardian, will exercise good judgment in doing so, and will act in the person’s best interests.

The fact that a guardian does not live in the state (or even in the country) does not disqualify

him or her from being appointed or continuing as guardian. However, it does lead to issues

about how her or she will fulfill his or her duty to know what is going on with the person, to

visit him or her personally, to participate in planning for services, and to be available when

decisions need to be made that only the guardian can make. Despite these issues, it may still be

in the person’s interest to have an out-of-state guardian who knows the person well and is

actively concerned, than to have someone recruited just for the sake of having a local guardian.

A concentration of power and conflict of interest is created when the person lives with the

guardian, especially if the guardian is a paid provider or relies on the person's income for

household expenses. This does not mean that all such situations should be avoided: often the

person lives with someone because he or she has the closest personal connection, and payment

for services may be essential to hold the household together. However, to avoid problems of

conflict of interest, landlords and paid residential providers should not be appointed as

guardians unless there is a strong, preexisting personal relationship, a demonstrated record of

positive concern and, ideally, a source of independent advocacy for the person.

A barrier to appointment of effective guardians in many places is the lack of a pool of suitable,

trained individuals to act as guardian. The protective service system in a county can make an

important contribution by recruiting volunteers and providing ongoing training and support, but

there is wide variation among counties in efforts to find and support guardians. Where there is a

serious lack of individual guardians, organizations of family members or friends may want to

consider offering corporate guardianship, or offering training and back-up to volunteers from

the community willing to act as individual guardians.

C. Who has legal preference to be appointed guardian?

The law lists certain people as having preference in selection of the guardian by the court.

These are not binding on the court, and the court can refuse to appoint a person with

preference, if the court finds it would not be in the person’s best interests. The legal preferences

include:

• Appointment of an agent under a durable power of attorney as guardian of estate.

• Appointment of an agent under a power of attorney for health care as guardian of

person.

• Appointment of a person nominated by the person, if the person has sufficient capacity to

form a reasonable and informed preference. This allows a person to nominate a guardian,

even at a point when he or she may otherwise meet the standard for guardianship. The

nomination must be in writing and must be signed in front of two witnesses, in the same

way that a will is signed.

• Appointment of the parent of the person, if the person has a developmental disability or

serious and persistent mental illness.

• Appointment of a person nominated in the will of the parent of the person, if the person

has a developmental disability or serious and persistent mental illness.

VIII. PROCEDURE FOR APPOINTMENT OF A GUARDIAN

¾ NOTE: The procedural duties of the petitioner are usually carried out by his or her attorney.

This section is not intended either as a guide to attorneys filing a petition, or as a guide for

people filing petitions who are not represented by an attorney. Its primary purpose is to help

petitioners and other members of the support team be well prepared for working with an

attorney, so that they know what to expect and can advocate for the best result. Each case is

different, and this handbook cannot cover all of the legal requirements in detail, or substitute

for a thorough knowledge of the statutes and court cases that govern guardianship law.

A. Why are due process procedures required in all cases?

Family members who have been providing support to a person with severe disabilities, and who

want to continue to do so as guardian, often ask why they (and the person) must go through all

the formal steps of the court process. The answer is that an adult is presumed to have control of

his or her life, and is entitled to due process of law before a court can take this liberty interest

away. This means that the court decision must be based on evidence, and that the person, and

others who may have an interest, must have a meaningful opportunity to be heard. While the

need for a substitute decision-maker for the person may be obvious to people who know the

person, the court does not know that until after proof is in the court record. It might help to ask:

“What kind of protection would I want, if my parent, child or sibling filed a petition asking a

court to give him or her authority to make decisions about how I conduct my life?”

B. Why are the court forms important?

The state courts have adopted forms for the guardianship process. Where a form exists, people

are required to use the form. The forms are not supposed to be altered, but information and

special requests can be typed into the forms, or added by attachment. Some local probate courts

also have their own forms, in addition to the state forms. The forms provide some guidance on

what information will need to be provided to the court, and on what the court will consider in

making its decision. However, the forms are not a substitute for knowing what the law requires.

The forms for use in guardianship proceedings in circuit court are found at:

http://www.wicourts.gov/forms1/circuit.htm#guard.

C. Who can act as the petitioner, what forms must the petitioner file, where and when?

The formal guardianship process begins with filing the petition, which is the document that

asks the court to appoint a guardian. The petition must be on the standard court form, available

http://www.wicourts.gov/forms/GN-3100.DOC.

The petition states that the person meets the standard for guardianship, nominates one or more

people to be appointed as guardian of person and/or estate (see Part VII), and sets out the rights

and powers that the petitioner thinks the person should keep, and the powers that the guardian

should have authority to exercise on the person’s behalf (see Part

IV). As discussed in Part

VI.B, it is useful for people who know the person well to think about what powers are needed

to provide effective support and protection for the person, before deciding what will go in the

petition. The petition also must identify the people who are entitled to get notice, and gives

their names and addresses (see Part VIII.D).

Anyone may petition a court to appoint a guardian for a person. The petitioner can nominate

himself or herself to be guardian. Sometimes, the county (see Part VIII.L), or a health care or

support service provider will act as petitioner. The petitioner does not have to have personal

knowledge of everything on the petition form, and can fill out the petition based on reliable

information that he or she gets from other people. A petitioner also can leave out information

that is asked for on the petition, if it is not available, as long as the petition states that the

essential grounds for guardianship exist. Some types of information that may not be available

to the petitioner include information on what the person owns, his or her income, and benefits

he or she receives. If confidential information is essential to complete the court process, the

court may order that it be released for purposes of the guardianship case.

The petition is filed at the office of the county Register in Probate in the county where the

person resides. Under some circumstances, it can also be filed in the county where the person is

present, even though he or she is not a permanent resident there. The petition can be filed no

more than 90 days before the hearing at which the order is to be issued. This means that the

person must be at least 17 ½ years old when the petition is filed, because the person must be at

least 17 ¾ years old at the time when an order for adult guardianship is issued. The petitioner,

or his or her attorney, is responsible for working with the county Register in Probate to get a

hearing date and guardian ad litem assigned, and usually drafts needed notices and orders for

the court to sign. (See next section.)

D. What is notice of the proceeding, who gets it, and how is it given?

Notice is the process of ensuring that people who have a legal interest in the guardianship

proceeding know about it, and know when and where the hearing will be. The petitioner is

responsible for arranging for notice. If notice is not given as required under the statute, the

court will not be able to order guardianship, and the petitioner may have to reschedule the

hearing, or start the process over. A guardianship that does get ordered without proper notice

may later be found invalid, if anyone challenges it.

After the petition is filed, the court issues an Order for Notice and Hearing, which is the form

used to officially inform other people that a court action for guardianship has been filed, and

about the date and location of the hearing. The court also issues an order appointing an attorney

as guardian ad litem for the person. The Order for Notice and Hearing and a copy of the

petition must be given to the individual in person at least 10 business days before the hearing.

The person who gives notice to the person must inform the person orally of the complete

contents of both the notice and the petition. The petitioner may not give the notice himself or

herself. Notice may be given by a professional process-server, but it is often appropriate to

arrange for notice to be given by someone who knows the person well, such as a teacher, case

manager, or support service provider. If the person is in a residential facility, nursing home, or

hospital, the statute provides a special process under which the notice is given by an employee

of the facility. Whoever gives the notice must complete an affidavit saying that he or she gave

the person notice of the petition and informed him or her of what it said.

Notice must also be given at least ten days before the hearing to the guardian ad litem, the

person’s attorney, if he or she has one, to any person nominated to be a guardian or standby

guardian, and to other people who are considered to be interested persons. These include:

• Any agent the person has appointed under a durable financial power of attorney for power of

attorney for health care.

• A parent, if the person is under age 18, or is unmarried and has no adult children. (This means

both parents, if both are alive, and have not had parental rights terminated.)

• The person’s spouse, if he or she is currently married.

• The person’s children, if he or she has children and there is no spouse.

• If the person is not married and does not have parents or children, then other next-of-kin

(usually brothers and sisters and/or children of brothers and sisters who have died).

• Any person having “legal or physical custody” of the person.

• Any government or private agency from which the person gets aid or assistance. This

includes the county department of human services or social services, if the person receives

long-term support services funded through the county.

• The county corporation counsel of the county of residence and of the county where the

petition is filed, if that is different.

• The state or federal department of veteran affairs, if the person is eligible for veteran benefits.

If a person entitled to notice cannot be identified or located with a reasonable effort to do so,

the court should be informed of the lack of notice. The court may be able to waive notice based

on the petitioner’s inability to identify or locate a person, or for other good cause. If the court

does not waive notice, it may still decide to go ahead with the guardianship. However, this may

mean that the person who was entitled to notice will later be able to reopen the case.

E. What is petitioner’s responsibility for filing statements of acts?

Each person nominated to be a guardian or standby guardian must complete a Statement of

Acts, on a required court form, giving information about any criminal record, record of

bankruptcy, or record of certain kinds of abuse, neglect or exploitation. This must be filed with

the court at least 96 hours (4 full days) before the hearing, not counting week-ends and

holidays. A copy should also be given to the guardian ad litem and to the person’s attorney, if

he or she has one)

F. What is petitioner’s responsibility for obtaining a physician’s or psychologist’s report?

The petitioner must arrange for a physician or licensed psychologist to complete a report stating

whether the person meets the standards for appointment of a guardian, giving an opinion about

what rights and powers the person has capacity to exercise, and providing other information

about the person’s functional ability to make and communicate decisions. The report should be

on the required court form,

GN-3130, but the doctor can attach existing records or a separate

report to the standard form, and refer to it in answers on the standard form.

The doctor who does the report must have seen the person personally. If an examination is

made for the purpose of the guardianship, the person must be told of the purpose, and that he or

she has certain rights not to participate. In many cases, the doctor’s report can be based on his

or her past treatment of the person, and information from others who know the person, without

a specific examination for the purpose of the guardianship report. If the doctor has not seen the

person recently, the court will consider how much time has passed since the examination, and

whether the person’s condition is likely to have changed, in deciding whether to rely on the

report. If an examination is needed, and the person refuses to attend, the court can order that the

person go to the examination, and that the doctor have access to information.

State law authorizes the doctor to provide the report to the petitioner and the court, if it supports

the need for guardianship. However, many physicians and medical records custodians will

require a court order authorizing release of the report, unless the person is still under age 18 and

has a parent who signs a release, or is an adult who has capacity to sign a release, and does so

knowingly and voluntarily.

As discussed in Part VI.B, above, it may be helpful for family members and/or the support

team to provide information about risks the person faces, the person’s ability to make decisions

in real-life situations, and their opinions about what rights and powers the person should keep.

The report of the physician or psychologist must be provided to the guardian ad litem and to the

person (or his or her attorney, if he or she has one) at least 96 hours (4 full days) before the

hearing, not counting week-end days and holidays.

G. Who is the guardian ad litem, and what is his or her role?

The guardian ad litem is an attorney appointed by the court to represent the person’s best

interests. The guardian ad litem is chosen by the court from a list of attorneys who have

training and experience. The guardian ad litem must be a person who has not been involved in

any other way with the case, and does not have any conflict of interest due to prior work for

any party.

The guardian ad litem advocates for the person’s best interests in the guardianship process,

makes sure the person is informed of his or her rights (whether or not the person fully

understands those rights) and makes sure that the person’s voice is heard, if he or she states an

opinion about the guardianship, or says that he or she wants to exercise his or her rights. The

guardian ad litem must consider the person's opinions about the need for guardianship, but does

not have to follow them in deciding what the guardian ad litem recommends to the court. A

guardian ad litem has no authority to make decisions for the person outside the legal

proceeding in which he or she is appointed, but can get access to confidential information

needed to do his or her job. The guardian ad liem’s duties include:

• Meeting with the person to explain what the guardianship petition means, to inform the

person (orally and in writing) about his or her rights in the guardianship process (see Part

VIII.H), and to find out if the person has any objection to the proposed guardianship.

• Interviewing the proposed guardian, and any other person who is seeking appointment as

guardian, to evaluate the fitness and suitability of the proposed guardians.

• Reviewing any advance planning for financial or health care decision-making done by the

person, and interviewing any agent appointed under a power of attorney for health care or

durable financial power of attorney, to evaluate whether the advance planning makes

guardianship unnecessary, and to what extent the authority of agents under the advanced

planning documents should remain in effect if guardianship is ordered.

• Requesting that the court order additional evaluation, if the guardian ad litem feels that

this would be in the person’s interests, or if the person has requested an independent

evaluation.

• Informing the court and petitioner’s attorney (or petitioner) if the person objects to the

guardianship, or to the person proposed as guardian, and/or if the person asks to exercise

any of his or her rights.

• Making independent judgments and recommendations about whether guardianship is the

least restrictive way to meet the need for decision-making support, what rights and powers

the person has the capacity to exercise, and who should be appointed guardian.

• Attending all hearings. The guardian ad litem can present evidence, and can cross-

examine witnesses called by other parties.

H. What rights does the person have in the guardianship process?

The person’s rights include:

• The right to his or her own attorney. If the person asks for an attorney but does not have

one, the court will appoint one. If the person is indigent, the attorney fee will be paid by the

county. The role of the lawyer for the person is to represent what the person says he or she

wants, to the extent this is clear, and/or to argue for the person to retain his or her civil

rights as an adult.

• The right to be present at the hearing. If the person chooses not to come to the hearing, or

has no opinion, the person can be excused from attending by the guardian ad litem. This is

often done for health reasons, or if the person would not benefit from attending, and would

be upset by attending a court hearing he or she does not fully understand. If the person's

inability to attend or participate is related to a disability, the court has an obligation to

provide reasonable accommodations, for example by moving the hearing to a place that is

accessible to the person, or by providing an interpreter.

• The right to an independent medical or psychological examination on the issue of

whether he or she is competent. The county must pay for the evaluation if the person is

indigent.

• The right to a jury trial on the issue of whether he or she meets the standard for a finding

of incompetence and to appeal.

If the guardian ad litem reports that the person objects to having a guardian, or to the choice of

guardian, the court will treat the case as contested, and will automatically appoint an attorney

for the person. Usually, the attorney will then help the person decide whether to ask for an

independent evaluation. Often, where the person or guardian ad litem object to something in the

petition, it is possible to reach a compromise under which the person keeps rights and powers

that are most important to him or her.

I. What is the role of an interested person in the guardianship proceeding?

An interested person does not have to respond to the notice of the guardianship proceeding in

any way. If the interested person does want to have input into the proceeding, the best way to

start is usually to contact the guardian ad litem, the petitioner’s attorney, and/or the person’s

attorney, to talk about any concerns or evidence he or she thinks should be brought to the

attention of the court. If an interested person attends the hearing, it will be up to the court to

decide to what extent he or she can participate. The court will usually allow an interested

person to make a statement, but may or may not allow an interested person (or his or her

attorney) to present evidence and ask questions of witnesses. An interested person who does

have a concern, and who does not feel that his or her concern will be represented by the

guardian ad litem, petitioner, or attorney for the person, has a better chance of being allowed to

participate if he or she files a petition with the court, in time to give proper notice to other

parties, saying what it is that he or she wants the court to do, and why.

J. When must the hearing be held, and what happens at the hearing?

The hearing must be held within 90 days after the petition filed. If the time limit goes by, it

will be necessary to re-file and re-serve the petition, so it may be better to delay a petition

until the petitioner is sure he or she can get everything ready for the hearing within 90 days.

The hearing will be very different if it is contested (someone objects to the guardianship, the

division of rights and powers, and/or to the choice of guardian), than if it is uncontested

(everyone agrees on what the order should say).

In larger counties, an uncontested hearing may be conducted by a court commissioner, rather

than a judge. In an uncontested hearing, the judge or court commissioner can rely on the reports

of the doctor and the guardian ad litem, without taking any evidence, so that the hearing only

involves making sure that needed documents are in the record, getting the report of the

guardian ad litem, and giving any interested person an opportunity to speak. This typically

takes 15 minutes or less, but court hearings do not always start when scheduled.

If the hearing is contested, it will be conducted by a judge. Typically, the doctor who made the

report and the doctor who did the independent evaluation will testify, and there may be other

witnesses about the person’s capacity, risk of harm, and choice of guardian. The petitioner’s

attorney, the guardian ad litem, and the person’s attorney may all present evidence and ask

questions.

K. Does the petitioner need an attorney to bring a guardianship action?

There is no legal requirement that a petitioner have an attorney. However, it is usually more

work for the court to deal with someone who is not familiar with the process and courts vary

widely in how helpful they are to people who do not have attorneys. Court staff must be careful

not to give legal advice or take sides in a case. Guardianship law is complicated, and involves a

lot of procedural technicalities. Having an attorney will help the petitioner ensure that needed

evidence is in the record, that the case does not get dismissed or delayed because notice was not

given in the right way, or a needed document was not filed in time, and help to make sure that

the guardian has the powers needed to provide needed support and protection.

Disability and aging advocacy organizations will often know the names of attorneys who do

guardianship work. Before hiring someone, a petitioner should feel free to call more than one

attorney to ask about experience with guardianship and fees. Fees vary, and will be higher if the

guardianship is contested. There may also be costs for medical or psychological evaluations, if

a special evaluation is needed for the guardianship, and is not covered by insurance or

Medicaid.

In some counties, the county corporation counsel will represent the petitioner, in a limited

number of cases. This is usually in situations where the county has determined that the person

is at risk of abuse, neglect, self-neglect or exploitation, and no family member or other

concerned person is able to pay the cost of bringing a petition. Under those circumstances, the

county can consider assistance with guardianship to be a protective service, or to be a necessary

part of getting an order for protective placement or other protective services.

L. Who pays the costs of bringing a guardianship petition?

The petitioner must pay the costs of his or her attorney, and any witness fees, unless the court

orders that a guardian be appointed for the person, the person has funds, and the court agrees

that it would be fair for the costs to be paid out of the estate of the person. The cost of the

guardian ad litem and attorney (if any) for the person will be charged to the person, if he or she

can afford to pay, or will be paid by the county, if the person is indigent. However, if the

guardianship petition is unsuccessful, the petitioner is responsible for paying these costs. This

adds financial risk to bringing a guardianship petition, if it is contested and there is real doubt

about whether the petition will be granted.

IX. DUTIES OF A GUARDIAN OF THE PERSON

A. What standard is a guardian held to, in carrying out his or her duties, and when can the

guardian be sued?

Guardians of both person and estate are held to very high standards. In carrying out the powers

that have been delegated to the guardian, the guardian must:

• Be as careful, diligent, and honest when acting on behalf of the person as an ordinarily

careful person would be in managing his or her own person or property.

• Advocate for the person's best interests, including protection and exercise of his or her legal

rights. (See Parts IV.B, IX.E and XV.)

• Exhibit the “utmost degree of trustworthiness, loyalty and fidelity” towards the person.

• Exercise powers in a manner that is appropriate to the person and that is the least restrictive

form of intervention. (see Parts I.E and IX.E.)

More detail on specific duties and best practices is in Part C, below.)

A petition can be brought in the guardianship action to ask the court to remove the guardian, or

to order the guardian to act or stop acting in a particular way, if the guardian fails to perform

his or her duties under this standard. (See Part

XIV.)

A somewhat lower standard applies if a guardian is sued for money damages for actions as

guardian that someone says have caused harm to the person or to someone else. A guardian of

person or estate is immune from personal civil liability if he or she acts in good faith, in the

person’s best interests, and with the degree of diligence and care that an ordinarily careful

person exercises in his or her own affairs.

B. Is the guardian responsible for supporting the person, or for providing direct care to the

person?

A guardian is not responsible for using his or her own money to support the person, and is not

responsible for providing direct care for the person. As discussed in the next section, the

guardian is responsible for learning about the person and what the person needs. The guardian

of person is responsible for trying to access sources of financial support, health care and

services that can help meet his or her needs, and the guardian of estate is responsible for using

the person’s resources to meet his or her needs and for applying for benefits that can help pay

for those needs. (There is overlap in these responsibilities, e.g., both the guardian of person and

estate may be responsible for making sure that all steps are taken to that the person is eligible

for Medicaid, for a person who needs Medicaid for his or her health care or support services.)

C. What are the duties of a guardian of the person?

As outlined in Part

A, above, the guardian must act in the best interests of the person, and must

decide what a reasonable person would do, if he or she were in the situation of the person under

guardianship. This is only possible if the guardian takes time to learn about the person’s

situation and wishes, and the choices available to him or her. A guardian does not need special

expertise, but does need basic common sense and a willingness to learn, not only about the

person's needs and rights, but also about his or her hopes and dreams, and the sources of

support and services that may help to achieve them. To be an effective advocate for benefits

and services, the guardian will need to be familiar with service needs and sources of benefits

and supports for people with the particular disabilities and support needs of the person. See Part

XVII, for sources of information.

The responsibility of the guardian is far more than arranging for food and a warm place to live.

A guardian is responsible for seeking services that will help the person to reach or maintain his

or her fullest potential, and that will allow the person to live and work in the least restrictive

environment possible. The guardian is also responsible for assuring that the persons' rights and

dignity as a person are defended.

Knowing the circumstances and condition of the person, and what supports and services are

needed, will mean consulting with the person, learning about the disability, and talking to

professionals and others involved in the person's life. Guardians should try to attend all

staffings, and should learn to ask questions and seek more than one opinion. If the guardian

does not know the person well, it is important to try to see the person in a variety of settings,

such as at home, at work, at a restaurant, etc. A guardian who lives far away should arrange

either to make visits or to find someone locally who is independent of service providers and can

visit the person regularly and report to the guardian.

The law requires the guardian to take time to know the person, to keep up-to date on his or her

situation, needs and preferences, and to act as an active advocate. A guardian of the person is

obligated to:

• Try to get any necessary care or services for the person that are in the person's best

interests. As noted in the last section, the guardian does not have to provide care or

services, but he or she does have to make a diligent, good faith effort to identify unmet

needs and sources of services, to apply for services and, where appropriate, to appeal

denials or seek advocacy assistance. The responsibility of a guardian is far more than

arranging for food and a warm place to live. A guardian is responsible for seeking services

that will help the person to reach or maintain his or her fullest potential, or to retain existing

abilities as long as possible, and that will allow the person to live and work in the least

restrictive environment possible. In deciding how hard to try and what strategies to use, a

guardian again should ask him or herself what a reasonable person would do if he or she

had the needs of the person. This will depend on the importance of the service to the

person, the chances of winning, and the cost, in terms of damaged relationships with service

providers and others important in the person's life. A guardian is not obligated to provide

“advocacy” that will do more harm than good.

• Make regular, in person visits to learn about the person's condition, surroundings, and

treatment. As a rule of thumb, this should mean in-person visits at least once every three

months, and more often if there are concerns about care or safety. This requirement may be

difficult to meet if the guardian does not live near the person. Fewer in-person visits may be

acceptable if the person is in a stable, well-monitored situation, the guardian has other

effective ways of staying informed about the person’s situation (such as information from

another family member or independent advocate who visits the person) and the guardian

can be involved in planning treatment and care through written communication and

attendance at meetings by telephone.

• Advocate for the person’s best interests, including advocacy in legal and

administrative proceedings. In addition to advocacy in areas like service planning and

access to needed supports, the guardian of the person typically receives notices of legal

proceedings, and represents the person’s interests, in cases that do not have to do with the

person’s property. The guardian may also need to bring complaints or start legal

proceedings to advocate for the person’s rights, including client rights for people receiving

services for mental illness, developmental disabilities and substance abuse and people who

are under protective service or protective placement orders, and resident rights for people

living in covered residential facilities. (See Part XV.) The decision to bring legal

proceedings, or to assert a defense if a legal proceeding is brought against the person,

should be made based on the usual question: “What would a reasonably prudent person do,

if he or she were making a decision about how far to take a case, or about how far to defend

a case?” It is important to get good advice on the likelihood of success, and to consider

whether the costs of the proceeding will outweigh the possible benefits. When a guardian of

a person is bringing or defending a legal action, the costs of litigation can usually be paid

out of the person’s estate, subject to court review for reasonableness of the costs. Therefore,

it is important for the guardian of the person consider cost, and to discuss payment of costs

with the guardian of the estate.

• Review the person's patient health care, treatment and support service records. This

should be done more often, if the person’s condition is unstable or there are issues about

need for changes in treatment. The guardian is often the only person outside the service

system who has full access to all of the files and records kept on the person, and a legal

right to get information about what support service and treatment agencies are doing, and

why. For example, the guardian can review pharmacy records to make sure he or she knows

what has been prescribed for the person, and whether medication is being given as

prescribed. Reviewing records on a regular basis helps to avoid the impression that the

guardian is requesting records because he or she thinks something is wrong.

• Make an annual report to the court and designated county protective services department,

covering the location of the person, the health condition of the person, any

recommendations regarding the person, and whether the person is living in the least

restrictive environment consistent with the needs of the person. There is a standard court

form for this report (GN-3480), which the court should send to the guardian each year.

• Participate in staff meetings about the person's treatment and care if the person is in a

residential facility or is receiving long-term support services in the community through

Family Care, a home and community based services waiver, Community Support Program,

or similar programs.

• Learn about the risks and benefits of treatment and services, and about treatment

alternatives, if consent to health care, mental health treatment or support services is

required.

• Consult with providers of health care and social services in making all necessary

treatment and service decisions.

D. What duties does the guardian have to act in a way that is least restrictive of freedom and

as respectful of preferences as possible?

In exercising his or her powers, the guardian of the person is obligated to act in a way that is

appropriate to the individual person and that is the least restrictive form of intervention. The

guardian must, consistent with meeting the person's essential requirements for health and safety

and protecting the person from abuse, exploitation, and neglect, act in the following ways:

• Least restrictiveness. Place the least possible restriction on the individual's personal liberty

and exercise of constitutional and statutory rights, and promote the greatest possible

integration of the person into his or her community. (See Part I.E, above, for the definition

of least restrictive.)

• Identify and honor preferences. Make a real and persistent effort to identify and honor the

person's preferences with respect to choice of place of living, personal liberty and mobility,

choice of associates, communication with others, personal privacy, and choices related to

sexual expression and procreation. “Honor” does not mean the guardian must always follow

the person’s choices: a guardian may overrule the person’s wishes under the circumstances

discussed in the next section, but may not do so without first making the effort to identify

and consider the person’s preferences.

• Consider cost. Consider whether the person's estate is sufficient to pay for the needed care

or services.

These provisions recognize that a person may have preferences, even if he or she does not

understand all of the consequences of a choice. They recognizes the importance of involving

the person in decisions, even in areas where the person has been found not to have capacity to

make decisions, and the importance of respecting choice, where possible. The choices the

person is permitted to make may carry some risk, provided that essential requirements of health

and safety are still met and the person is protected from abuse and neglect. A person is most

likely to develop, maintain or regain communication skills if the things he or she communicates

have a real impact on meaningful decisions in his or her life. A person is most likely to

develop, maintain or regain decision-making skills if he or she can make decisions and

experience the consequences.

E. Under what conditions does a guardian have authority to make a decision that is contrary

to the person’s expressed wishes about where to live, choice of friends, use of birth

control, sexual activity and similar choices?

A guardian must sometimes decide whether to make choices that are contrary to the person’s

expressed wishes with regard to decisions related to choice of place of living, personal liberty

and mobility, choice of friends, communication with others, personal privacy, and choices

related to sexual expression and procreation. The right of a person to make these kinds of

choices is protected by the U.S. Constitution. Because the guardian gets his or her authority

from the state, he or she must protect the person’s genuine exercise of a right, unless there is a

compelling reason to overrule the choice the person makes. This involves first identifying and

considering the person’s preferences. A guardian may then act contrary to the person’s

expressed wishes in these areas only if all of the following conditions are met:

• Power to act in the area of decision-making is authorized by court order.

• The decision is necessary to meet the person’s essential requirements for health and

safety and/or to protect the person from abuse, exploitation or neglect.

• The decision is made in a way that respects the person’s preferences and opportunity to

develop decision-making skills. In making a decision contrary to the person’s expressed

wishes, the guardian must take several factors into account:

o Person’s level of understanding. The greater the person's understanding of the

nature and consequences of the decision, the more weight should be given to his or

her preferences.

o Level of risk. Where there is low risk, it may be better to permit the person to make

the decision and experience the consequences. On the other hand, even

constitutionally protected rights can be restricted where there is a compelling

interest at stake, such as a substantial threat to health and safety.

o Opportunity to develop decision-making skills, by making decisions and

experiencing consequences, where the risk is acceptable.

o Need for wider experience. This recognizes that, if a person is permitted to refuse

new experiences and developmental or rehabilitative activities, the effect may be to

limit rather than promote choice.

This balancing test can provide a useful formula for analyzing and discussing disputes

between the guardian and the individual (or between the guardian and other people,

such as support service providers) about whether a guardian is being overly restrictive

or overly permissive.

X. POWERS AND DUTIES OF A GUARDIAN IN GIVING INFORMED CONSENT TO

PHYSICAL AND MENTAL HEALTH CARE.

A. What is informed consent?

A primary role of the guardian of the person is to give informed consent to needed treatment,

care and services, for a person who lacks capacity to give the consent himself or herself. In

many cases, a provider cannot legally give the person nonemergency treatment or services

without informed consent, so the existence of someone authorized to give informed consent is

essential for the person to have access to needed care. Informed consent has two parts to it:

• First, there must be a genuine consent, meaning that the person who gives it must do so

voluntarily and must not be subject to any kind of coercion, including a threat to refuse or

withdraw other services because of the refusal to consent to a particular service. A

voluntary consent can be withdrawn at any time.

• Second, it must be informed. This means that the person giving the consent must have

received specific, complete and accurate information concerning the proposed treatment or

services. This should include:

o The benefits of the proposed treatment or services.

o The way the treatment or services will be provided.

o Any risks or side effects which are a reasonable possibility.

o Alternative treatments and services.

o The probable consequences of not receiving the proposed treatment and services.

Informed consent to treatment or services related to the person's mental illness, developmental

disability, alcoholism or drug dependence, is covered by special rules in

Wis. Admin. Code, §

DHS 94, and must be in writing, except in an emergency, or where a temporary oral consent is

in place while written consent is obtained from a guardian who is not physically present. The

consent must include notice of the right to withdraw informed consent in writing, at any time.

In addition, a person under guardianship still retains a right to refuse treatment or services for

mental illness, developmental disability, alcoholism or drug dependence unless a court, in a

commitment or protective services proceeding, has found the person incompetent to exercise

that right (See Part

X.C.)

B. What powers can the court give to the guardian related to giving informed consent to

treatment of physical health conditions?

The court can give the guardian power to give informed consent to voluntary medical and

health care services for physical health conditions. The court can also, as a separate power,

give the guardian power to consent to involuntary medical and health care services for physical

health conditions, over the person’s objection.

Separate requirements apply to consent by a guardian either to experimental treatment or to

participation by the person in research that is not expected to help the person and involves

more than minimal risk to the person. Even if the order appointing the guardian gives the

guardian general authority in these areas, the guardian must always get case-by-case court

approval for any participation by the person in experimental treatment or research that involves

risk but no expected benefit to the person. (See next section for limitations on guardian

authority to consent to treatment related to mental illness, developmental disability, alcoholism

or drug dependence, including psychotropic medications and inpatient treatment.)

Before a guardian gives consent to either voluntary or involuntary medical care or treatment, he

or she is required to discuss the care with the person, and to find out if the person objects in any

way. If the person agrees to the care, or is silent about it, the guardian can give informed

consent to the care. If the person objects, the guardian can give consent to physical health care

and treatment over the person’s objection, but only if the guardian has authority under the court

order to consent to involuntary care. The authority to consent to physical health care over the

person’s objection includes authority to consent to sedation or temporary restraint of the person

so that essential physical health treatment can be given safely, if the person is physically

resistant. It also includes authority to consent to medication for physical health conditions

without the person’s knowledge, e.g., by putting it in the person’s food or drink, but only after

the medication was first discussed with the person and the person was given the opportunity to

take it voluntarily.

Special restrictions apply to consent by a guardian to admission of the person to a nursing home

or large residential facility, or to any admission for residential care over the person’s objection.

See Part XI.

¾ NOTE: The guardian cannot be given authority to consent on the person’s behalf to donation

of organs or tissue to benefit another person, or to a procedure for the purpose of sterilization.

See Parts IV.D and XII.B.

C. What power can be given to a guardian to consent to treatment or services related to the

person's mental illness, developmental disability, alcoholism or drug dependence?

A court can give the guardian authority to consent on the person’s behalf to treatment or

services related to the person's mental illness, developmental disability, alcoholism or drug

dependence, including administration of psychotropic medication. However, even a person

who has been found to have incapacity to consent has a right to refuse treatment for

mental illness, developmental disabilities, alcoholism and other substance dependence,

unless a court separately finds that he or she is incompetent to refuse treatment and medication,

as part of an order for commitment or an order for administration of medication as a protective

service. The right to refuse does not apply in a situation where medication is necessary to

prevent serious physical harm to the person or others.

¾ NOTE: The term treatment for mental illness, developmental disabilities, alcoholism and

other substance dependence includes “rehabilitation” services but not “habilitation” services.

This can be thought of as the difference between a treatment that tries to change the way the

person thinks or behaves, and a service that tries to support the person or teach new skills. The

line between treatment and other kinds of support services is not precise. Some things that

clearly are treatment include psychotropic medication, psychiatric treatment, psychotherapy,

and invasive behavioral treatment programs. Some things that are clearly not treatment are

residential support services and vocational support services.

The law requires that, before giving consent to administration of psychotropic medication to the

person, the guardian must make a good-faith attempt to talk to the person about taking the

medication voluntarily. (As a practical matter, if the guardian lives at a distance from the

person, it may necessary for this to be done by telephone, or through a person acting as agent

for the guardian.) The medication can then be administered to the person based on the

guardian’s consent only if the person does not protest receiving the medication. A protest can

be made by words, facial expression or gestures. Silence is not considered a protest, and there

is no requirement that the person understand the decision being made. If the person does

protest, the guardian can ask the person again, and does not have to honor a protest that is not

repeated more than once. If there is a protest, the guardian does not have authority to consent to

nonemergency administration of psychotropic medication either through force or by trying to

give it to the person without his or her knowledge.

If a proposed mental health treatment is considered to be a drastic treatment (such as

psychosurgery or electroconvulsive therapy), or is considered experimental research,

informed consent of both the person and guardian is required. This means the person must be

able to understand the risks and benefits of the treatment, and make an informed decision. For

both experimental and drastic treatment, consent of the person is valid only after consultation

with his or her legal counsel. For experimental treatment, consultation with independent

specialists is also required. There is an exception that allows a guardian to consent on behalf of

a person who does not have capacity to give informed consent to treatment, if the person has a

life-threatening condition that is likely to be improved by the treatment, and other alternatives

have been exhausted.

The guardian’s authority to consent to treatment includes authority to consent to admission to

acute-care inpatient facilities and residential treatment facilities, for a person who is not

objecting. See Parts XI.B and XI.C.

D. What are the guardian’s responsibilities in identifying the person’s health care needs,

planning for health care, monitoring care, and giving informed consent to treatment,

including intrusive or restrictive measures?

The guardian's duty is not simply to consent to whatever is recommended by health care

providers. A guardian should be an active advocate for the person’s access to care, and for his

or her safety in the process of getting it. A guardian can play a very valuable role as historian:

the guardian will often be the one constant person in medical decisions over time. A guardian

should make an effort to learn the person's medical history and should tell the doctors if the

ward is allergic to medications, or has a history of particular medical problems or

complications. In addition, by monitoring the person’s condition and reviewing treatment

records, a guardian can play a valuable role in ensuring that care is being administered as

prescribed, that no care has been prescribed without informed consent, and that any signs of

side-effects of medication are being noted and considered.

Before giving consent, a guardian must make sure that he or she has been given the information

required for the consent to be informed (see Part X.A, above), and must make a determination

that the proposed treatment or care is in the person’s best interests. A guardian should give the

same kind of careful thought that a reasonable person would give in consenting to care for

himself or herself. Some considerations in determining best interests, in addition to the benefits

and risks of the procedure itself, include:

• The invasiveness of the medication or treatment, including not only the direct effects of the

medication or treatment, but also whether there will be a necessity for sedation or restraint,

and the potentially traumatic effects of treatment the person does not understand.

• If the person has had capacity to make health decisions in the past, expressions of personal

preferences made when the person was competent. In general, following clear

expressions of the person’s wishes, made when he or she had capacity, should be

considered to be in his or her best interests, even if the guardian would make a different

choice for himself or herself in the same situation.

The amount of time a guardian will need to spend on a decision will depend on the nature of

the procedure. Some medical decisions, such as the decision to follow a doctor's advice to have

your appendix out, are reasonably straightforward: you can be pretty sure that you need the

operation, that it will work, and that there are no other good choices. On the other hand, some

decisions, such as whether to have surgery for back pain, may be much harder: you can live

with some back pain, an operation may not work, there are significant risks that you might be

worse off, and there are alternative approaches, such as exercise, physical therapy, chiropractic

services, acupuncture, etc., that might be worth trying first. Typically, you would want to take

some time about this kind of decision, and to seek other opinions, perhaps from other kinds of

professionals with other, less drastic approaches.

The requirement that care and treatment be discussed with the person before consent is given

can be burdensome. (See Part X.B and C, above.) In some cases it may seem like wasted time,

because the person gives no indication of understanding what is being said. It may even seem

counter-productive, because the person will be upset by the discussion, and more likely to resist

treatment that is going to be given regardless of his or her opinion. In the case of treatment

related to the person's mental illness, developmental disability, alcoholism or drug dependence,

it is not possible to avoid the discussion, because the person’s right to refuse is only meaningful

if he or she knows about the treatment. In the case of physical health care, where the court

order gives the guardian authority to consent to involuntary care, it may be legitimate for a

guardian to reduce time spent on these kinds of discussions, based on experience that the

person does not understand or respond, or that he or she is upset by them. In general, however,

the guardian should try to keep the person as informed as possible, even where there is

uncertainty about how much information the person is really receiving. Where the guardian

lives at a distance, the discussion may have to be done through an agent, who can let the

guardian know of the person’s response.

E. What special considerations apply to consent to plans that include use of seclusion,

restraint or restrictive measures?

If the guardian is asked to consent to a plan that includes seclusion, restraint or aversive

behavior management techniques, it is important that the guardian ensure that these are used

only in an emergency or for genuine treatment purposes, and then only when the provider has

clearly shown that other more positive methods will not work. In addition, these methods

should be used only:

• When less restrictive measures have been tried and were not effective.

• In combination with a positive environment and activities, and with positive reinforcement

for alternative, desired behaviors.

• With adequate support, monitoring and supervision to keep the person safe and make the

program effective.

• With a reasonable plan for phasing out use of the restrictive measure.

If a program has not produced positive behavioral changes, a guardian should question whether

it is useful to continue the program, whether another approach should be looked at, or whether

other things about the person's environment and activities should be changed. Human service

programs, including nursing homes, licensed residential facilities, and publicly funded day

activity and residential support programs, have strict restrictions on use of restraints. The

guardian can contact the Division of Quality Assurance, the Clients Rights Office, Disability

Rights Wisconsin and the Board on Aging and Long Term Care for guidelines and grievance

procedures (see Part

XVII.D for contact information). A source of guidelines on the use of

restrictive measures for people with developmental disabilities or traumatic brain injury is

contained in Guidelines and Requirements for the Use of Restrictive Measures (Wis. Dept of

Health Services, Feb. 2009), on-line at

http://dhs.wisconsin.gov/bdds/waivermanual/app_r.pdf.

A useful pamphlet for guardians of nursing home residents is Avoiding Physical Restraints:

What All Nursing Home Residents and Families Need to Know (Wis. Dept of Health Services,

March, 2008), on-line at http://dhs.wisconsin.gov/publications/p6/pqa3113.pdf.

F. What power can be given to a guardian of person to refuse life-sustaining treatment, or to

consent to withdrawal of life-sustaining treatment?

Under Wisconsin law, a person who is not incapacitated has the right to refuse life-sustaining

treatment, including artificial ways of giving the person food and water. If the person is

incapacitated, but he or she clearly expressed his or her wishes as to what he or she would want

done in a particular situation, it is in the best interests of the person that his or her wishes be

followed. Ideally, the wishes will be expressed in a declaration to physicians or power of

attorney for health care document, or in the instructions the person has given to his or her agent

under a power of attorney for health care. However, a guardian also has authority to follow

wishes expressed by the person in other ways when he or she had capacity, such as in

conversations with family members, as long as those wishes are clear.

Where the person never had capacity, or never stated his or her wishes clearly, a guardian has

the authority to refuse life-sustaining medical treatment, including artificial ways of giving the

person food and water, only if (1) the person's physician, and two independent physicians,

determine with reasonable medical certainty that the person is in a chronic vegetative state,

which is defined as a complete and irreversible cessation of all cognitive functioning,

consciousness and behavioral responses, and (2) the guardian determines in good faith that

withholding treatment is in the person's best interests.

In determining best interests for a person in a chronic vegetative state who has not expressed

his or her wishes while competent, the guardian is required to begin with the presumption that

it is in the best interests of the person to continue to live. This presumption can be overcome by

the person’s circumstances, including information on chances of recovery and effectiveness of

any possible treatment. If possible, the guardian must give notice of the decision to withhold

treatment to a list of interested parties, including the person’s spouse, next of kin or close

friend, the physician, the health care facility, and others, give them time to respond, and

consider the opinion of those persons. Any interested party who objects to the guardian's

decision to withdraw treatment can request court review of the decision.

It is not clear in Wisconsin what the guardian’s authority is in cases involving consent to

withhold or withdraw of treatment other than artificial nutrition or hydration, where an

individual who is not in a vegetative state has a terminal illness, the treatment will only prolong

the process of dying (without providing other benefits in terms of restored health, restored

functioning, or comfort), and the treatment itself is painful or highly intrusive. It is clear that a

decision to withdraw treatment should not be based on a determination that life for a

person with a disability has a lower quality or is somehow less worth living than life for

other people. A guardian may not substitute his or her own view of the quality of life of the

person. Whenever a guardian feels unsure of his or her authority, or whenever there is a conflict

with medical providers, family or other interested people, the guardian can petition the court for

a decision defining his or her authority.

It is not uncommon for health care facilities to ask guardians to sign “do not treat” or “do not

resuscitate” orders for people who are not in a persistent vegetative state and do not have

conditions that are expected to result in imminent death. Unless these orders reflect known

wishes of the person expressed when competent, they exceed the guardian’s authority,

especially if treatment would be standard for people of the same age and physical health status

who are not incapacitated. The do-not-resuscitate orders that are authorized by state statute are

very limited. (See Part X.F.)

XI. POWER TO DECIDE WHERE THE PERSON WILL LIVE, AND TO ADMIT THE

PERSON TO A RESIDENTIAL FACILITY OR INPATIENT TREATMENT FACILITY

A. What authority can be given to a guardian to determine where the person will live?

A guardian has authority to make decisions about where the person will live, unless the court

order reserves that power for the individual. Guardian power to have custody and make

decisions related to mobility indicate authority to over choice of residence. At the same time,

the choice of where to live is a protected liberty that is not lost simply because a person is

under guardianship, and the guardian is specifically required to try to identify the person’s

wishes related to choice of place of living, and to honor those choices to the extent possible,

consistent with the person’s health and safety. See Part

IX.C and E. The guardian can overrule

the person’s decision only under the factors discussed in Part

IX.E. Many people under

guardianship are capable of choosing between available, safe places to live, and should not be

deprived of that choice. In addition, a guardian’s authority to admit the person to larger

facilities, and to require the person to live someplace over the person’s objection, is restricted

and may require a separate court order for protective placement.

Where the guardian and the person share a home, it is not clear to what extent the guardian can

require the person to stay if the person continues to ask to leave, particularly if any kind of

physical force or restraint is needed. As a practical matter, if the person is at imminent risk of

serious physical harm if he or she leaves, the guardian needs to do what is necessary in the

short term to keep the person safe. However, if the person is clearly objecting to living in the

guardian’s choice of home, or if physical restraint of any kind is needed, that should be

reported to the county adult protective services agency (see Part XVI.A and the Chapter 55

Manual), and/or the court, so that the agency and/or court can review whether there is a need

for an order clarifying the guardian’s responsibility, or a court protective placement order (see

Part XVI.B and the Chapter 55 Manual).

¾ Comment: Unfortunately, not all guardians have the best interests of the person as their first

priority. Unreasonable confinement may be a form of abuse, and may be a warning sign of

other forms of abuse, neglect or exploitation, especially if it is part of a pattern of isolation of

the person. A person’s attempt to leave, or seek a different residence, should not be ignored or

discounted, without further investigation, simply because he or she is under guardianship. If the

person refuses to return to a home of the guardian’s choice, but is willing to accept a safe

alternative, he or she should not be deprived of that choice while the issue is resolved,

especially if there is reason to believe that abuse or neglect may have occurred.

B. What authority can be given to a guardian to consent to admission to nursing homes and

residential facilities?

A guardian of the person can have authority under the court order to consent to admission of a

person to an adult family home or community-based residential facility that is licensed to

serve 16 people or fewer, but only if all of the following conditions are met:

• The placement implements the person's right to the least restrictive residential

environment. The guardian must review whether the placement is least restrictive at least

annually.

• The person does not verbally object or otherwise actively protest the placement. If the

person objects to the admission, by words or actions, the person in charge of the home or

facility must immediately notify the adult protective services (APS) agency for the county

in which the person is living. The APS agency will then visit the person, decide whether he

or she is still objecting, talk to the guardian about the placement decision, and decide

whether it is appropriate to start a protective placement proceeding (see Part XVI.B), in

order for the person to be able to stay in the placement or to get an appropriate alternative

placement.

A guardian of the person may have authority under the court order to give consent to

temporary admission to a nursing home or community residential facility that has more

than 16 beds for up to 60 days, only if all of the following conditions are met:

• The person is in need of recuperative care, or there is a serious risk of substantial harm to

the person or others that would be prevented by the admission.

• The primary purpose of the admission is not for treatment or services related to mental

illness or developmental disability.

• The person does not indicate an objection. (If the person does object, the guardian or

facility staff should contact the county adult protective services agency, or seek emergency

protective placement through the county or a court.)

• The placement implements the person's right to the least restrictive residential environment.

If a petition for protective placement is brought after the admission, the admission can be

extended for another 60 days to allow the protective placement process to be completed. If a

petition for protective placement is not brought, the admission can be extended for 30 days

beyond the original 60, in order for discharge planning to be carried out.

If the person lives with his or her guardian, the guardian may make a temporary respite

placement of the person, to provide the guardian with a vacation or to allow the guardian to

deal with a family emergency. This kind of placement could apparently be to any kind of

residential facility or nursing home, but not to an inpatient mental health treatment facility. The

placement can last for up to 30 days, but the guardian can apply to the court that established the

guardianship to extend the placement for a total of no more than 60 days. The court can direct

what information is required in the application.

If none of these provisions apply, but placement to a residential facility or treatment is needed,

the guardian, facility, county, or other interested person will need to file a petition with the

court for a court order for protective placement. See Part XVI.B and the Chapter 55 Manual.

C. What authority can be given to a guardian to consent to admission for inpatient

psychiatric treatment?

A guardian with authority under the court order to make health care decisions may admit the

person to a facility for acute mental health care, but only if the guardian consents and the

person either also consents, or does not indicate any objection. The admission must be

recommended by a physician, and the physician must go through a special process of informing

the person of his or her right to leave, and of making sure that the person does not express any

objection to the admission.

If none of these provisions apply, but placement to an inpatient treatment facility is needed, a

petition for commitment will be necessary. See Part XVI.C.

XII. DECISIONS RELATED TO SEXUAL EXPRESSION, SEXUAL CONTACT AND

PROCREATION

A. What power can be given to a guardian of the person to decide whether the person may

or may not have sexual contact with another person?

The fact that a person has a guardian of the person does not by itself answer the question of

whether he or she can consent to sexual contact, unless the court order specifically indicates

that he or she does not have capacity to consent. There are many people under guardianship

experiencing consensual, positive, sexual relationships. There are also many people who have

guardians and lack capacity to consent to sexual contact, and/or are at high risk of sexual abuse.

Where disputes over sexual decision-making are likely to arise, it may be helpful if the question

of the person’s capacity to consent can be resolved in the court order. If the person has capacity

to consent to sexual contact, he or she will be better off if that right is clearly stated, and the

guardian will be better off if it is clear where his or her responsibility begins and ends. If the

person cannot give consent, but is at high risk of engaging in risky conduct, it is again in the

interests of both the person and guardian for the guardian’s authority to be clear. Because the

form for the court guardianship order does not have a section dealing with sexual decision-

making, this will have to be added under “custody” or “other powers,” or through an

attachment or separate order.

For some people, it will be difficult to determine the person’s capacity to consent outside of a

particular situation, so that the issue cannot be resolved for all situations by a general court

order. It is a challenge for the guardian to support and protect a person who has capacity to give

a voluntary and knowing consent under some circumstances, but not others, and who is likely

to engage in risky behaviors or to be in situations where he or she may be subject to abuse or

exploitation. For a guardian in this situation, two rules of law pull in opposite directions:

• A person who has capacity to consent to sexual activity has a constitutionally protected

right to consent to engage in knowing and voluntary sexual activity, both as a protected

liberty interest and as part of the right to privacy. This applies even to a person who is

under guardianship, and is reflected in the fact that a guardian must consider and try to

honor the person’s wishes regarding participation sexual activity, where possible consistent

with protecting the person from abuse. See Part IX.E, above.

• Sexual contact with a person who lacks capacity to consent to the contact is abuse and,

if the perpetrator knows of the person’s incapacity, it is a criminal sexual assault. A

guardian cannot consent to sexual contact on behalf of a person who cannot give a knowing

and voluntary consent for himself or herself. The guardian has a duty to try to protect the

person from abuse.

The test for evaluative capacity to give a knowing consent is whether the person is able to

understand the nature and consequences of the sexual contact involved. Elements of what the

person must be capable of understanding have not been precisely defined by Wisconsin courts,

but may include:

• The physical nature of the sexual contact involved, and that it enjoys a special status as

“sexual.”

• That the person’s body is private and that he or she has the right to refuse to engage in

sexual activity.

• That sexual contact of some types may result in pregnancy, and an understanding of the

health risks of sexual contact.

• That there are social standards and potential social consequences that apply to the sexual

contact.

Where the person is expressing a wish to be in a situation where sexual contact might occur,

and the guardian believes that the person has capacity to consent under the circumstances, the

guardian must make any decision to overrule the person’s choice under the criteria in Part

IX.E,

above.

B. What power can be given to a guardian of the person to consent on the person’s behalf to

birth control or abortion?

Like the choice to engage in sexual activity, the choice by a competent person to procreate or to

prevent procreation is a constitutionally protected, fundamental personal decisional choice.

Except for authority to consent to sterilization where the person also consents, guardian

authority to make decisions related to use of birth control, and whether to have an abortion, are

rarely spelled out in the court order. Where birth control issues are likely to be a source of

conflict, it may be a good idea to clearly spell out the guardian’s authority (or lack of it) under

the court order.

As discussed in Part

IV.C, above, a guardian in Wisconsin cannot give consent on behalf of the

person for a medical procedure, where the purpose of the procedure is sterilization. In order for

the person to be sterilized, the court must find that he or she retains the capacity to consent, and

the person must in fact give an informed consent. This should be carefully documented, e.g., by

having the person see an independent counselor before giving consent.

Where the guardian has authority under the court order over health care decisions, the guardian

can consent to other forms of birth control that are not permanent, unless that power is reserved

to the person. Where the guardian has authority to consent to medication without the person’s

consent, this also could extend to birth control. These powers are still subject to the general

duty to discuss decisions related to health care with the person. In addition, because the right to

make decisions about procreation are protected personal rights, the guardian has a duty to make

diligent efforts to identify the person’s preferences regarding use of birth control, and to honor

those preferences when consistent with protecting the person’s health and safety (see Part

IX.E,

above.)

It is difficult to predict how a Wisconsin court would deal with the question of a guardian’s

authority to consent to an abortion, and the decisions of courts are likely to be very fact-

specific. Among the alternatives:

• If the person retains capacity to consent to an abortion, a court could make a specific

finding that she is able to consent. This is most likely to happen in the context of an actual

decision to have, or not to have, an abortion. It will probably be helpful for the court if the

person has had counseling, and the counselor can report that the person understands the

nature of the decision and its risks and consequences, and has a consistent opinion.

• If the person lacks capacity to make a decision, and an abortion is necessary to protect the

person from a serious risk to her health or life, it is likely that a guardian can consent to an

abortion under a general authority to make health related decisions. However, like any

decision related to procreation, the decision must be discussed with the person, and the

person’s opinion must be considered in making the final decision.

• In a case where the person lacks capacity, and there is no serious health risk to the person,

the guardian should seek court guidance, in the context of the particular situation, before

making a decision to consent to an abortion. If the person is able to express an opinion of

any kind regarding whether to have an abortion, that opinion should carry great weight with

both the guardian and court. Other factors the court might consider include: whether the

pregnancy resulted from sexual assault; any opinion the person may have expressed in the

past about abortion; and the likelihood of emotional trauma to the person if the pregnancy

goes to term.

XIII. POWERS AND DUTIES OF A GUARDIAN OF THE ESTATE

A. What standard is a guardian of estate held to, in carrying out his or her duties, and when

is the guardian personally responsible for costs?

The general standard of care that a guardian of estate must meet is the same as the standard for

a guardian of person (See Part IX.A, above). The basic guidelines to remember are to always

be at least as careful with the person’s property and financial interests as a reasonably

careful person would be if it were his or her own property, and to always act loyally in the

best interests of the person.

A guardian of estate is not personally responsible for paying for the person’s expenses.

However, a guardian of estate may be personally responsible to the person if the guardian acts

in bad faith, or fails to take reasonable care in managing the person's property or finances, not

only for losses of property but also for failure to get access to income or benefits which the

person might otherwise have received. For example a guardian of estate may be held personally

responsible for losses to the person that result from:

• Health care costs that are charged to the person because the guardian was negligent in

failing to apply for eligibility for Medicaid, or in failing to appeal an incorrect denial of

benefits.

• Failure to invest property in a reasonable way that would have produced income. (See Part

XIII.E.)

• Damage to property because it was not maintained or stored in a safe location, or losses

because property was not properly insured.

B. What are the powers and duties of a guardian of estate?

Unlike guardianship of the person, an order for guardianship of the estate gives the guardian the

full duties and powers available under the statute (see list below), except as limited in the order.

The court is required to tailor its order so that it grants only powers that (1) are necessary to

provide for financial management and (2) are the least restrictive form of intervention. Some

powers of a guardian of estate may only be exercised with specific approval of the court,

including powers to make gifts, put money in trust, or purchase real estate (see list below).

The primary duties of the guardian of the estate are: to make sure the person’s funds are

used to meet his or her needs, to preserve the funds from waste or exploitation by others,

and to manage and invest the funds in a responsible way. A guardian of estate is responsible

for making sure that whatever money the person has is used wisely and only for the person's

own benefit, or for the benefit of legal dependents of the person. The person’s property should

be used to enable the person to live at the standard of living he or she can reasonably afford and

would choose if he or she were competent, if that is possible while keeping a reasonable level

of funds for future needs. While many people would also want their funds preserved so that

they have something to leave at death for their family or other beneficiaries, the primary job of

the guardian is to see to the person’s support and welfare, not to preserve funds for future

beneficiaries.

The guardian of estate does not have the responsibility to support the person out of the

guardian’s own money. However, the guardian does have the responsibility of making sure that

applications are made for all local, state, and federal income support programs (such as

Unemployment Compensation, disability insurance benefits, Social Security, Supplemental

Security Income, Food Stamps, veterans’ benefits. Medicare and Medical Assistance, and other

supportive programs such as the Community Options Program) that could assist in supporting

the person.

A guardian of estate has the following duties:

• The guardian must post a bond to protect the person from loss due to the guardian’s

actions, unless this has been waived by the court. Courts will often waive the requirement

of a bond where the size of the estate is small.

• The guardian must take possession of the person’s property and income over which he

or she has been given authority under the guardianship order (this property is sometimes

called the guardianship estate), and of any income that is earned on the property (such as

rent, interest or dividends). The person continues to be the owner, and title to the property

should remain in the person’s name, but the guardian has possession and control. (See Part

XIII.E, for how the guardian should hold and invest property.)

• The guardian must make and file an inventory of everything the person owns at the time

the guardianship is created. If the guardian later discovers additional assets, the guardian

must file an amended inventory to include those assets. See Part

XIII.F.

• The guardian must use the guardianship estate to provide for the maintenance and

support for the person and his or her dependents. This is a primary protective purpose

of guardianship. The guardian does not need court permission to provide

support to people

the person is legally obligated to support, but would need prior written court permission use

the person’s property to provide support to other dependents, e.g., grandchildren who have

lived with the person, or adult children with disabilities. The guardian should also be aware

of the potential impact on public benefits of gifts of this kind. See Part

XIII.J, on power to

make gifts.

• The guardian must keep track of money received and spent, and file accounts with the

court, including annual accountings, unless waived by the court, a final accounting, and

any other accounting that the court may require. (See Part XIII.G.) The guardian is

responsible for transferring remaining property at termination of guardianship.

• The guardian of estate must act as an advocate for the person in legal proceedings that

relate to the person’s finances. Considerations in whether to bring or defend against legal

proceedings are similar to those faced by a guardian of person. (See Part

IX.C.)

• The guardian must find out if the person has a will, and where it is. If the person dies, the

guardian must make sure that the appropriate people know that the will exists and that

the person has died. (Note that the guardian’s power to make decisions about the person’s

property ends when the person dies. See Part

XIII.M.

Unless otherwise specified in the order, a guardian of estate for an individual has the following

powers, but as noted some powers may require individual, case-by-case court approval:

• To make contracts that obligate the person. This is a power that may be limited by the

court order. For example, the person might keep power to make contracts, but only up to a

certain amount of money, or only for certain purposes, like renting a place to live. Even if

the guardian has full authority, court permission is required for some kinds of contracts,

including purchase or mortgaging of real estate.

• To pay the person’s debts, claims and taxes. The guardian is responsible for making sure

that claims are legitimate, and disputing questionable claims. The guardian’s power

includes power to settle claims and represent the person in legal actions on debts and

claims.

• To keep, sell, and invest the person’s property.

See Part XIII.E.

• To authorize access to confidential financial records.

• To apply for public and private benefits that are available to the person, and to act as

representative payee, if appointed to do so by the benefits agency.

The guardian has a

duty to make sure the person gets available benefits, and is not spending his or her own

money on things that could be covered by benefits. The guardian also has a duty to act as

representative payee, if a payee is needed and there is no other appropriate person or agency

willing to be payee.

• To make gifts and disclaim interests, under limited circumstances. A disclaimer is a

decision not to take property that the person has a right to receive, such as an inheritance

from someone who has died, and is treated the same as giving away property the person

already has. Any time the guardian makes a gift to another person or gives up an interest

that the person has in property, without getting market value in return, the guardian must

get prior written approval of the court. The conditions under which a court can approve

gifts and disclaimers, other than for support of family members or transfers to a spouse, are

very limited. (See Part

XIII.J.) If the person gets public benefits, the guardian should find

out whether the gift or disclaimer will affect the benefits, before making any kind of gift or

disclaimer.

• To purchase or cash in annuities and insurance, and make changes of beneficiaries.

Any of these kinds of changes require prior written court approval because they may

change plans that the person had as to who would benefit from his or her property at his or

her death. These kinds of actions, especially concerning annuities, can also have an effect

on public benefits.

• To make decisions about management and ownership of marital property, but only

with prior written court approval. See Part XIII.H.

C. How can guardianship of the estate be tailored to the person’s needs, and how can the

guardian continue to involve the person in management of property?

See Part IV.E, above, for ways in which the powers over the estate can be divided between the

person and the guardian, to reflect individual circumstances and needs.

The fact that a guardian has all or most powers over property does not prevent the guardian

from finding ways for the person to be involved in financial decision-making and practice and

learn greater skills in financial management. The guardian can still involve the person in paying

bills, discussing financial decisions, meetings about leases or home purchases, etc. The

guardian can also decide to give the person spending money in an amount that he or she can

safely handle, and/or to establish a bank account in the name of the person that he or she

manages directly, and uses for personal needs. This can be an important way to enable the

person to maintain as much control and dignity as possible, or to learn skills in using and

managing money. However, the guardian should remain aware of his or her potential liability if

the person’s support needs are not met, or there are major losses to the estate.

If the person lives in a nursing a nursing home or other residential setting, and receives public

benefits, he or she may be required to use his or her income for the costs of the facility, and be

allowed to keep only a small personal needs allowance. The fact that the amount is small makes

use of this amount particularly important. Sometimes, these funds are not spent because no one

takes time to think about what the person might need or want, and the guardian should be active

in identifying ways that the funds can benefit the person, and should make sure that they do not

accumulate to the point of threatening benefits, or get used for the benefit of other people. It is

possible for residents to pool money to buy something for the benefit of all, but the person

should not pay more than his or her fair share, or pay for something that should have been

provided by the facility.

D. How do the responsibilities of the guardian of person and guardian of estate overlap, and

how do they need to work together?

It is important that the guardian of estate and guardian of person work together, because of the

overlap between their different powers and duties. For example:

• A guardian of person may apply for Medicaid as part of his or her duty to ensure access to

needed health care, but will need information about the person’s finances to make the

application. A guardian of estate may be responsible for the same thing, as a way of

protecting the person from the costs of health care, may need to make changes in what the

person owns in order to meet eligibility tests, and may need to know what services the

person needs, in order to know what benefits to seek.

• The guardian of person may have power to decide where the person will live, but the

guardian of estate will have to decide whether the costs of the home are affordable, to sign

the lease or mortgage, and to make arrangements with utilities.

• A guardian of person is required to consider cost among other factors in making best

interests decisions. Whenever arrangements for nonemergency needs and wants involves

contracting, or a commitment to pay, the guardian of person must remember that signing

contracts is a power of the guardian of estate.

• Agencies and other that send out notices about services, financial accounts, and legal or

administrative proceedings are not always good at knowing which guardian to send them to.

These notices may have implications for both guardians, and it is important that each

guardian think about whether a notice needs to be shared with the other guardian.

• Whenever either guardian is involved in advocacy in legal proceedings, or in applying for

public benefits or services, it is important to think about whether the other guardian needs

to be informed and involved.

In general, a guardian of estate should not use his or her power over funds to control personal

decision-making, whether or not the person has a guardian of person. For example, it is

appropriate for the guardian of estate to refuse to pay for a particular choice of housing because

it is not affordable in the long term, or because there is a need to conserve the estate for other

reasonably anticipated future needs of the person. It is not appropriate to use control of funding

to control where the person chooses to live, or as a way to coerce the person into accepting

treatment or support services that the guardian of estate thinks are appropriate.

As a rule, a guardian of estate may never use the person’s funds for his or her own benefit, by

making gifts or loans to himself or herself, or by using the person’s property for his or her own

use. Some exceptions are described in Part XIII.K and L. The guardian should avoid self-

dealing--selling something, or paying himself or herself for a service other than his or her

services as guardian. If self-dealing is genuinely in the person’s best interest, the guardian

should seek court authorization.

E. What are the guardian’s powers and duties in setting up accounts and investments, and in

buying and selling property?

The assets of the person must be held and accounted for separately from any assets of the

guardian. This means that all bank accounts and other investments must be titled in the name of

the person, with the guardian of estate shown in his or her role as guardian. This means that the

property belongs to the person, but is controlled by the guardian. The guardian should not hold

the person’s property in the guardian’s personal accounts, as that has the appearance of a

transfer of funds to the guardian.

In making investments of the person’s property, the guardian is required to follow the Uniform

Prudent Investor Act, unless the guardian has obtained special permission from the court that

other investments are in the person’s best interests. The Uniform Prudent Investor Act in

Wisconsin is

Wis. Stat.. § 881.01. The basic requirement of the Act is: “A fiduciary shall invest

and manage assets as a prudent investor would, by considering the purposes, terms, distribution

requirements, and other circumstances of the estate, trust, conservatorship, or guardianship. In

satisfying this standard, the fiduciary shall exercise reasonable care, skill, and caution.” A

guardian is responsible for making sure that assets that are not needed for immediate needs are

put into income-producing investments. A guardian should not make investments that are too

risky under the person’s circumstances. The investment decisions are evaluated in light of the

person’s circumstances, and over-all financial situation. For example, a guardian for a person

with limited resources, who needs them to meet his or her needs, may decide to choose

investments that produce little income in order to minimize risk. A guardian may keep funds

enough funds, to meet reasonably anticipated needs in a form that is readily accessible, even if

income on the liquid investments is low.

The guardian must take possession of real property (buildings and land), provide for its

management and collect rent. If the person owns any real estate, the guardian must file notice

of the fact that the person has a guardian with the register of deeds in the county where the

property is located, giving a legal description of the real property. The guardian must get prior

court authorization for any decision to buy, sell or mortgage real estate.

F. What is the guardian of estate’s responsibility to file an inventory?

Within 60 days after he or she is appointed, the guardian of estate must file an inventory that

lists all the interests in property that the person owned on the date that the guardianship was

created. The inventory is important, because it is used by the court as the basis for future

accounting by the guardian about how the guardian has managed and spent the property. There

is a required court form for the inventory (GN-3440). Helpful information on filling out the

inventory is available in the Coalition for Wisconsin Aging Groups, publication, Guardian of

the Estate: How to Complete an Inventory, available on their website at:

http://www.cwag.org/uploads/Guardianship Support Center/Guardian Estate - Inventory June

2007 lite.pdf. If the guardian discovers other property after the inventory is filed, he or she

should file an amended inventory.

The inventory must include things that the person owns with other people, such as land owned

in a tenancy in common, or interests in a business. If the person is married, much of his or her

property may be marital property (owned half by each spouse), and this needs to be shown on

the inventory. (See next section.)

If the powers of the guardian of estate are limited, the guardian may not be responsible for all

of the person’s property. In that case, the guardian should be careful to separate out property on

the inventory for which he or she is not responsible, and list that separately, so that he or she is

not held responsible for accounting for the property to the court. Similarly, if the person only

owns something that may or may not have value (like a claim in a lawsuit that has not been

decided) that should be listed separately, and the inventory can be amended when the guardian

knows the real value. It is a good idea to discuss issues like this with staff at the county

G. What are the responsibilities of the guardian of estate to keep track of the person’s

property, and account for the property to the court?

The guardian has to keep track of the person’s property, new money or property received (such

as interest income), and how and when property is used or money is spent. It is a good idea to

get a notebook to write all this in since there must be reports filed with the probate court each

year. Ask for separate receipts when buying things for the person and keep these receipts (write

on the back of the receipt what it was for) so that it is easier to keep the accounts.

The guardian of estate must also file an annual accounting with the court, unless the accounting

is waived by the court. (The guardian can ask the court to waive annual accounting when he or

she files the inventory. Usually, the court will waive annual accounting for an estate that has a

value of less than $50,000.) Whether or not the annual accounting is waived, the court can at

any time ask the guardian to do an accounting. The accounting shows income or new assets

that came into the estate, how the money is invested, and what was spent during the year. The

guardian will be asked to produce evidence of the accounts and investments shown in the

inventory showing the balances at the end of the accounting period.

If the guardian is representative payee for Social Security or SSI benefits, he or she will need to

do an accounting to Social Security. It may be useful to have a separate account for this, to

make the account for Social Security easier. This account can then be used for most of the

person’s minor living expenses. If the guardian is not representative payee, he or she should not

be responsible for accounting for the Social Security payments, but should monitor the

representative payee to make sure payments are properly applied to the person’s needs, and to

ensure that funds held by the payee to not accumulate to an amount that would affect eligibility

for needed benefits.

There is a required court form for the accounting (GN-3500). Helpful information on filling out

the accounting is available in the Coalition for Wisconsin Aging Groups, publication, Guardian

of the Estate: How to Complete an Account, available on their website at:

http://www.cwag.org/uploads/Guardianship Support Center/Guardian Estate - Account June

2007 lite.pdf. A final accounting is required prior to discharge of the guardian. For smaller

estates (under $50,000), the court will usually only require a listing of assets that the person

owns at the time the guardian is discharged or the guardianship is terminated.

H. What special rules apply to use and management of the estate if the person is married?

Each spouse has a legal obligation to support the other spouse. A guardian has authority to use

the person’s assets to support his or her spouse, without getting special court permission.

Wisconsin is a marital property state. This means that assets that appear to belong to one

spouse or the other in a married couple actually belong to both of them, with each having a

one-half interest. It is important to get advice on marital property interests before taking action

that affects marital assets.

With permission of the court, the guardian can take any action that the person could have taken,

with regard to transfers to and from the other spouse, and with regard to agreements about how

the property is owned. This means that it is possible to make (or receive) substantial gifts to (or

from) the other spouse, and to reclassify property so that it is the sole property of one or the

other spouse, or so that ownership is shared. These powers can be extremely important if one

spouse or the other needs long-term care funded by Medicaid, or may need such care in the

future, as it provides a potential way to protect property and income for the other spouse. (It is

essential to get expert advice before making any kind of transfer, as the rules and policies that

affect Medicaid long-term support are very complicated.) It may also be possible to transfer

resources to a family trust that was created to manage resources for the couple. (See next

section.)

If a person under guardianship gets married, the court must review the guardianship. This

allows the court to determine whether guardianship is still needed and whether the duties of the

guardian, or the choice of guardian, should change, should change to reflect the person’s

changed circumstances.

I. When can a guardian of estate transfer resources to a trust for the person?

A transfer to a trust can be a way to provide for use and management of funds more in line with

the person’s wishes, or a way to better protect funds for the person’s use, while allowing the

person to get needed public benefits. Any transfer of funds to a trust requires court permission,

based on a finding that the transfer is in the person’s best interests. Transfers to trust that a

court can approve include:

• Transfer of resources from the guardianship estate to a revocable living trust that was

established by the person for his or her benefit and the benefit of any dependents. If

the person (or a married couple) has planned ahead, he or she (or they) may have

established a revocable living trust (see Part V.B.iv), above.). These kinds of trusts usually

provide for management and use of assets if the person (or either spouse) is incapacitated

during his or her life, as well as for distribution of assets at death. The trust can be much

more individualized than guardianship, in terms of carrying out the specific wishes of the

person (or couple).

• Transfer of resources to a self-funded supplemental needs trust for the person (see Part

V.B.iv). The guardian must have court permission both to establish the trust and to transfer

the resources. This is a very important step that the guardian can take to qualify the person

for Medicaid or Supplemental Security Income, if he or she has excess resources, or to

maintain the person’s eligibility for Medicaid or SSI if he or she receives assets in his or her

own name, through an inheritance or Social Security backpayment.

• If the guardianship estate is less than $50,000, transfer to any trust that has been created for

the person’s benefit. (This is usually done as an alternative to guardianship.)

J. When can a guardian use funds to make gifts or provide support to other people?

Generally, the guardian’s duty is to use the person’s funds only for his or her benefit, and

otherwise to preserve and protect the property. This means that the guardian cannot make gifts

that the person would ordinarily have wanted to make, even presents to family members on

gift-giving occasions or continuations of gifts the person made while competent, unless the

guardian gets special permission from the court. (One possible option, where the person has the

remaining capacity, is to give the person spending money, which he or she can then use to pick

out and buy small gifts for family members.)

The guardian, without getting special court permission, can use the person’s property provide

support to someone that the person is legally obligated to support, including a spouse and minor

children. As discussed in Parts XIII.H, I and J, a guardian can also seek permission from the

court to transfer resources of the person to a spouse, or to a trust for the person and other

dependents, even though that transfer may not be purely for support. A guardian may also seek

permission from the court to allow use of funds for the support of someone the person does not

have a legal obligation of support. For example, this might be used for permission to use funds

for support of an adult child or grandchild who is still in high school or college, or who is not

self-supporting and has in the past received support from the person.

A guardian must get court permission for any other gifts (including gifts to a child that are not

for the purposes of support), and the court can approve these gifts only under very narrow

circumstances. In considering a proposal to make a gift, the court will consider the person’s

wishes, the benefit to the person or his or her immediate family, whether the gift is consistent

with other planning the person has done, and any other factors the court thinks are important.

K. When can a guardian be reimbursed for expenses or be paid for his or her services as

guardian?

A guardian can use the person’s funds to pay the guardian back for reasonable costs of being

guardian. This can include the reasonable cost of travel to see the person, and the cost of hiring

an attorney, accountant, financial adviser or tax preparer to provide advocacy, advice or

assistance to the guardian. A record detailing mileage and other expenses should be kept,

including receipts wherever possible. The court is supposed to approve the reasonableness of

all expenses before the guardian is reimbursed, but courts vary in how this is interpreted and

applied. It is a good idea to check with your local court about when the court wants the

guardian to get approval for reimbursement.

The guardian should be careful not to abuse the right to reimbursement, e.g., by paying for trips

the guardian would have made anyway, for other purposes, or incurring costs that are

unreasonable, given the amount of money the person has. The guardian should consider

whether he or she would have expected a non-disabled friend or relative to pay travel or other

costs in similar circumstances, and whether the trip was largely for other purposes (like visiting

other relatives) in deciding whether it is fair to charge the guardianship estate. The guardian

should seek court approval in any case where there is a question about the reasonableness of an

expense.

A guardian of person and/or a guardian of estate can also receive compensation for his or her

services as guardian. Any compensation must be approved in advance by the court, based on

what the court decides is fair and reasonable. This approval can be obtained at the time the

guardianship is established.

L. When can a guardian charge the person for other kinds of services the guardian provides,

or sell things to the person?

A different issue is presented when the guardian enters into any kind of business arrangement

with the person, where the guardian is providing a paid service to the person (other than his or

her duties as guardian), selling something to the person, renting to the person, or making a loan

to the person. This kind of arrangement is called self-dealing. Not all self-dealing is prohibited,

but any self-dealing should be clearly part of carrying out the guardian’s duties to meet the

person’s needs and wants, and should never be done if the only purpose is to assist the guardian

in some way. Examples include:

• The guardian and the person may live together and share expenses. Often, this means that

the person lives in the guardian’s home, and the guardian uses the person’s resources to pay

his or her share of living expenses, such as rent, mortgage interest, real estate taxes, utilities

and the cost of food and household supplies. This can be seen as part of the guardian’s duty

to use the person’s funds for his or her support, and usually does not require prior court

approval, unless the guardian makes a profit from the amount charged, or the person is

subsidizing the costs of any other household member (other than a spouse or minor child).

If the guardian lives in the home of the person, he or she should get approval of the

financial arrangement from the court, to ensure that it is fair to the person.

• The guardian may be providing personal care or other services to the person, and may

feel that he or she should be paid for those services. Any arrangement of this kind should

get prior approval of the court to make sure it is in the best interests of the person, e.g., that

the paid services are needed, the guardian is an appropriate provider, and the guardian is

not being paid more than the typical cost of similar services.

• The guardian may want to rent a condo or home to the person. It can be a great

advantage to the person to rent from a family member on favorable terms (see One Step

Ahead, Ch. IX) but if the guardian is the landlord he or she should get approval of the

arrangement from the court.

• The guardian may want to sell something to the person. This should only happen when it

is the most favorable arrangement, e.g., the guardian is willing to sell something to the

person on very favorable terms, and only with prior court approval.

• The guardian may want to make a loan to the person and to charge interest. The ability

to get loans easily from friends and family members to cover unusual expenses can be a

great advantage to the person, especially if he or she relies on public benefits (see

One Step

Ahead, Ch. V.D). If the guardian is the lender, court approval should be obtained for any

large or long-term loan, any loan that involves interest and any loan that involves a

mortgage. It may be possible to get blanket approval, if loans will be made over time, e.g.,

to pay home repair costs or real estate taxes.

In any of these arrangements, prior notice to the court, or a request for court approval, will help

to explain why the guardian is writing checks to himself or herself from the guardianship estate.

M. What is the guardian of estate’s responsibility when the person dies?

For a person who has an estate over $50,000, the guardian’s authority to manage and spend the

person’s money ends when the person dies, and the guardian should turn over assets to the

person appointed as personal representative for the person’s estate. The guardian can petition to

have a personal representative appointed, if that is necessary. If there is a will, the guardian is

responsible for making sure that the appropriate people know about the will, and that it gets

filed with the probate court. The guardian is responsible for making sure that the property is

transferred to the person who is entitled to it, either because of a will, the law that applies when

there is no will, or other laws or contracts that apply.

If the estate is under $50,000, the guardian of estate can usually work with the probate court to

settle the estate, pay any debts, and distribute remaining assets, without having to go through

the formal probate court process and without appointment of a personal representative.

XIV. COURT REVIEW OF NEED FOR GUARDIANSHIP AND PERFORMANCE OF THE

GUARDIAN

A. How can the rights of the person and the powers of the guardian be changed, to restore

rights and powers to the person, or to give more powers to the guardian?

Over time, the person may gain or lose decision-making skills, or his or her situation may

change, so that he or she needs greater (or less) protection, or so that his or her ability to make a

particular decision on his or her own becomes more important. In these cases, the court can be

asked to review and modify the guardianship order. For example, if the person wants to marry,

it will be more important to clarify whether he or she has the capacity to do so. If the person

does marry, the court is required to review the guardianship for its appropriateness to the

changed circumstances. The different ways in which a court can modify a guardianship order

include:

• The court can remove rights that are reserved to the person, or increase the powers

assigned to the guardian. A guardian or any interested person may submit a statement to

the court requesting removal of rights or transfer of powers to the guardian. The statement

should include reasons for the change, and the facts that support it. This could be in the

form of a physician’s statement about changes in the person’s condition, or a statement by

the guardian about risks to the person’s health or safety that have occurred. The court must

appoint a guardian ad litem to look into the issue and report to the court about whether the

change is in the person’s best interests. If no one objects to the change within 10 days (or a

shorter period set by the court), the court can order the change without a hearing. If there is

an objection within 10 days of the notice, or the court decides that a hearing should be held,

the court will hold a hearing to decide whether to grant the request.

• The court can restore rights to the person, reduce the powers assigned to the guardian,

or terminate the guardianship. The guardian, the individual, or any person acting for the

individual, may file a petition asking the court to review whether the person has capacity to

exercise particular rights or make particular decisions, and/or whether the person continues

to meet the test for a finding of incompetence,. If the person is found to have capacity to

exercise a right or power, the court can amend the guardianship order so that his or her

authority to exercise the right or power is restored. If the court finds that the person is no

longer incompetent, the court must end the guardianship. The court must appoint a guardian

ad litem to look into the issue and report to the court about whether the change is in the

person’s best interests. The court must hold a hearing before taking any action, and the

person has rights very much like the rights he or she has in the original guardianship

proceeding. (See Part VIII.H.) The court can refuse to do a review of this kind, if one has

happened within the past 180 days.

The petition to restore a right can sometimes be used to allow the person to make a specific

decision. For example, the person may have decided that he or she wants to marry, or to be

sterilized, or to donate an organ to another person. It is sometimes easier to show capacity in

the context of this kind of a specific decision. One way to do this is to have the person spend

time with an independent counselor, so that the counselor can say that the person understands

the nature, risks and benefits of the decision, and has been consistent about what he or she

wants to do.

B. When can a court order the guardian to carry out his or her responsibilities, or order

removal the guardian?

A court can remove a guardian of person or guardian of estate, or make an order telling the

guardian to carry out his or her responsibilities, for any failure by the guardian to carry out his

or her duties, including a failure to act in the person’s best interests, or to exhibit “utmost

loyalty” to the person. A court’s decision to remove the guardian is based entirely on its

findings about the person’s best interests. The court does not have to find that the guardian did

anything illegal, or that the guardian acted in bad faith, in order for the guardian to be removed.

Examples of reasons the guardian can be removed, or ordered to act in a particular way,

include:

• Failing to file an accurate inventory, accounting or other report when it was due.

• Failing to protect the person’s property, or using it to benefit someone other than the

person.

• Failing to take action to prevent abuse or neglect of the person.

• Paying himself or herself out of guardianship funds, in a way that is not permitted by the

statute or the court.

• Failing to provide adequately for the personal needs of the person from the person’s

available assets and income.

• Failing to take action to try to assure that the person is cared for in the least restrictive

environment consistent with his or her needs and incapacities.

The court may act because someone files a petition requesting review of the guardian’s

conduct, or because the court decides on its own that a review is needed. The court must always

appoint a guardian ad litem to investigate and report to the court on the person’s best interests,

and must always hold a hearing. After the hearing, if it finds that grounds exist, the court can:

• Order the guardian to file or correct an inventory, accounting, or other required report.

• Order the guardian to pay the person back for losses caused by the failure of the guardian to

act with reasonable care (see Parts IX.A and XIII.A, above, or order that the guardian will

not be paid.

• Order the guardian to act in a way that is in the best interests of the person.

• Remove the guardian, and appoint someone else as guardian.

• Require the guardian to pay the costs of the proceeding, including the attorney fees of other

people involved in the proceeding.

XV. RESPONDING TO ABUSE, NEGLECT, EXPOITATION AND VIOLATIONS OF

RIGHTS

A. How does someone make reports of abuse, neglect, self-neglect or exploitation of a person

under guardianship?

Wisconsin has two systems for reporting physical and sexual abuse, neglect, self-neglect and

financial exploitation, one system for elder adults-at-risk (people over 60), and one system for

younger adults-at-risk (people under age 60 who have disabilities and are at risk). Any adult

who is under guardianship based on a finding of incompetence meets the definition of being an

adult-at-risk. In most ways, the two systems are the same: every county must designate one or

more agencies to receive reports of abuse, neglect, self-neglect or financial exploitation of an

adult-at-risk or elder adult-at-risk, and is required to respond to reports by investigating and

offering needed services to prevent abuse. The person making the report is protected from

liability if he or she made the report in good faith. For detail on the abuse reporting systems, the

required county response, and protective service laws, see Ch. II and IV of the

Chapter 55

Manual.

B. What if the guardian is suspected of participating in abuse, or tolerating abuse by

someone else?

In most cases, if the person reporting abuse is not the guardian, he or she will want to alert the

guardian as soon as possible to the abuse, neglect or exploitation. However, if the guardian is

suspected of participating in, or tolerating, the abuse or neglect, informing the guardian could

place the person at greater risk of harm, or make it likely that the guardian would try to prevent

an effective investigation. There is no requirement that a reporter obtain permission of the

guardian before making a report, and the county can begin an investigation without informing

the guardian. Provider agencies may be subject to other rules that require them to inform

guardians about changes in the person’s situation, but the paramount consideration should be

protection of the person from harm.

In some cases, where the person lives with the guardian, there may be a need to get a protective

order, or to provide someplace else for the person to go, in order to protect the person from

harm. Where the person expresses a wish not to return home because of an allegedly abusive

situation, an effort should be made to find a safe, neutral place for the person to stay while the

alleged abuse is investigated. It may also be appropriate to seek a domestic abuse or adult-at-

risk restraining order from court to prevent further abuse, or interference with the investigation.

More information on restraining orders and emergency protective orders is in of the Chapter 55

Manual. If the guardian may be the abuser, or may be ignoring the abuse, it may be appropriate

to apply to the guardianship court for review of the guardian’s conduct (see Part XIV.B) and

immediate appointment of a guardian ad litem. A person who cannot take action to protect

himself or herself from harm may be appropriate for emergency protective services or

emergency protective placement. See Part XVI.

C. What is the guardian’s responsibility to advocate for the rights of a person in a licensed or

certified residential facility?

While a residential facility may provide a protective environment, it also creates a situation in

which the person is dependent on a single entity—the facility—for most of his or her daily

needs, and an environment in which the person may be isolated from the larger community.

This is especially true if the person does not go out to a separate program for daytime activities.

Because of the power of the facility, the individual, other residents, and facility employees may

be unable or unwilling to assert the person’s rights. The risk that the person may be

overmedicated for the convenience of staff, or that medication or negative behavioral

interventions may be used as a substitute for positive activities, if often higher in residential

facilities. The role of the guardian as an independent, outside observer and advocate for the

person is therefore particularly important, and the guardian should ensure that the guardian, or

at least an agent of the guardian independent of the facility, sees the person regularly, and

reviews records regularly, especially if the person receives psychotropic medication or

behavioral treatment, or is subject to restraint or seclusion. See Part

X.D and E, above. The

guardian should also ensure that he or she is aware of all of the rights that apply the person in

the service setting involved.

Any person who lives in a nursing home, facility for persons with developmental disabilities

(FDD or ICF-MR), or community-based residential facility (CBRF) is protected by a state

statutory bill of rights. The rights are found at Wis. Stat. § 50.09. In addition, there are

administrative rules that give further detail on these rights in the following chapters of the

Wisconsin Administrative Code: Ch. DHS 132 (nursing homes); DHS 134 (facilities for the

developmentally disabled); and DHS 83 (community-based residential facilities. Where a

person is under guardianship, power to enforce and protect the person’s rights passes to the

guardian, although the person may still assert rights or make complaints on his or her own

behalf. Protected rights include rights to:

• Have private and unrestricted communications, by mail, telephone, and personal visits.

• Present grievances to operators and public officials.

• Manage personal finances and/or delegate this responsibility.

• Be notified of per diem rates, other charges and services.

• Courtesy, respect and dignified treatment by all staff.

• Physical and emotional privacy in treatment and living arrangements including privacy in

visits and in medical examinations, discussions and records.

• Not be required to perform non-therapeutic work for the facility.

• Choice of participation in social, religious and community activities, unless medically

contraindicated.

• Retain and use personal clothing and property (within space limits).

• Be transferred or discharged, and be given advance notice of planned transfer, discharge or

alternatives. If discharge is involuntary, it must be based on failure to pay or inability of the

facility to meet the person's needs, and it is subject to an appeal process.

• Be free from mental or physical abuse and unauthorized physical or chemical restraints.

• Receive adequate and appropriate care within the capacity of the facility.

• Choose his or her health care providers.

• Be fully informed of and participate in planning treatment and care.

A complete copy of the rights and the facility’s grievance procedure must be provided to the

person and the guardian at the time of admission. The guardian of person has authority to

exercise and advocate for the person’s rights. The person also retains the authority to advocate

for his or her own rights, and to make complaints concerning alleged rights violations.

If a guardian believes the person’s rights are being violated, he or she can use the facility’s

grievance procedure, complain to the Board on Aging and Long Term Care, and/or a state

agency which investigates and mediates complaints, and/or complain to the regional office of

the Bureau of Quality Assurance at the Department of Health Services, which is the agency

responsible for enforcing state and federal rules in nursing homes. To find the responsible

regional office, go to:

http://dhs.wisconsin.gov/bqaconsumer/HealthCareComplaints.htm .

A person in a residential facility who is receiving treatment or services for certain mental

disabilities, or a person under a protective placement order, also has the rights described in the

next section.

D. What is the guardian’s responsibility in advocating for the rights of a person who is

receiving services or treatment for mental illness, developmental disabilities services,

alcoholism or other drug dependence?

See Part

X.C, above, for discussion of the guardian’s authority and role in consenting to and

monitoring treatment and services for mental illness, developmental disabilities, alcoholism and

other substance dependence.

When a person receives services or treatment for mental illness, developmental disabilities,

alcoholism or other drug dependence, he or she is entitled to a list of rights, commonly referred

to as client rights. These rights apply whether the person is receiving services in the person’s

home, in a community setting, or in a private or state facility. The rights are set out in Wis.

Stat. § 51.61 (titled “Patients Rights”) and Wis. Admin. Code Ch. DHS 94. The rights also

apply to any person who is under a court order for protective placement or protective services,

even if he or she does not have a diagnosis of mental illness, developmental disability or

substance dependence. Covered settings include community services under contract with

county community program departments, such as residential and vocational support service

agencies, and other providers, such as outpatient clinics.

Because these rights are specific to treatment and services for people with mental illness,

cognitive disabilities and/or protective service needs in a wide range of settings, it is important

for the guardian to become familiar with them. The guardian of person has the power and

responsibility to exercise the rights on the person's behalf and to advocate for the person’s

rights. The person always retains the right to assert his or her rights and make complaints on his

or her own behalf. In some cases, even though the guardian has the power to consent, the

concurrent consent of the person is required, and/or the person retains the right to refuse

treatment to which the guardian has consented. See X.B and C.

Wis. Admin. Code Ch. DHS 94, creates a grievance procedure which each provider and county

is required to adopt. A grievance should first be investigated by the agency you are

complaining against, and you have a right to a prompt and written response. Grievances can be

appealed for review by the county and then by the state, so that there is a review independent of

the agency. The person or guardian can also bring a lawsuit to stop violations of rights and to

recover actual and exemplary damages for any harm from rights violations. If the lawsuit is

successful, the agency involved may also be required to pay the attorney fees of the person who

brought the lawsuit.

Complaints about rights violations that occur in state facilities go to the state Department of

Health Services’ Clients Rights Office after internal review in the facility. A summary of rights,

links to the statutes and rules, and information on the grievance process are available on the

state Clients Rights Office web pages at

http://dhs.wisconsin.gov/clientrights/intro.htm

Rights protected by § 51.61 and DHS 94 include rights:

• This right may now be limited in county-funded services due to funding considerations. See

Chapter 55 Manual, Ch. V., Part D.3.

• To adequate and appropriate treatment, rehabilitation and educational services. This should

include the right to learn basic living skills, as well as more formal treatment.

• To have the least restrictive treatment condition needed to carry out the purpose of his or

her commitment or admission. This right also may now be limited in county-funded

services due to funding considerations. See Chapter 55 Manual, Ch. V., Part D.3.

• To be informed about treatment and care and participate in planning treatment and care.

• To live in a comfortable and safe physical place, and to have people treat him or her with

respect.

• To be free of excessive or inappropriate medication and to refuse to take any psychoactive

medications or participate in treatment, except under certain circumstances. See Part X.C.

• To not have psychosurgery or other drastic treatment, and to not take part in experimental

research, unless he or she gives informed consent, in addition to consent of the guardian.

See Part X.B.

• To be free from physical restraint and isolation, except as part of treatment or in an

emergency. Restraint and isolation should never be used for convenience of staff or as a

substitute for active programming. See Part

X.E, above.

• To have his or her conversations with staff, and all medical and care records kept

confidential, and to have access to treatment records. (Confidentiality and access to

treatment records are covered by

Wis. Stat. § 51.30 and Wis. Admin. Code Ch. DHS 92.)

XVI. RELATIONSHIP OF GUARDIANSHIP TO PROTECTICE PLACEMENT AND

COMMITMENT

A. What are protective services?

Protective services are services provided or arranged by the county for people with mental

illness, developmental disabilities, degenerative brain disorders or other like disabilities, to

prevent abuse, neglect, self-neglect and exploitation. A person who is under guardianship based

on a finding of incompetence will, by definition, be in a disability group that is eligible for

protective services. There is very little separate funding for protective services, so they are

generally funded by other existing funding programs. Where there is a risk of abuse, neglect or

exploitation, the protective services responsibility of the county may give the person higher

priority to receive services, where there are limited funds for services.

Protective services may be either voluntary or court-ordered. If a person under guardianship

based on a finding of incompetence is at risk of serious harm as a result of a refusal to accept

protective services, a court may order protective services. This is done by the same court that

ordered the guardianship, but requires a separate petition. See Ch. 55 Manual, Ch. IV.

B. What is protective placement?

Protective placement is a court order, under which a person under guardianship based on a

finding of incompetence, who is at risk of serious harm in the absence of residential placement

and services, may be ordered to live in a particular residence or to enter a residential facility,

for purposes of receiving care and support services. Protective placement may not be used for

placements for acute care for mental illness, or for placements to psychiatric hospitals.

Protective placement may be used if there is a need for admission to a facility for which a

guardian cannot give consent, such as long-term nursing home care or care in a large residential

facility (see Part

XI.B). However, protective placement can also be used for placements to a

home setting, supported apartment, or adult family home, either because the person is

protesting the placement, or as a way to get court review of the question of whether the county

has an obligation under the circumstances to provide appropriate or less restrictive care or

services to the person. See

Chapter 55 Manual, Ch. IV., Part H.2.

C. What is commitment, and how does it relate to guardianship?

A commitment order is a court order that requires the person to receive inpatient and/or

outpatient placement and treatment for mental illness, developmental disabilities, alcoholism or

other substance abuse. Where the person’s primary need is for treatment, and he or she refuses

to agree to treatment, commitment may be the most appropriate way to require him or her to

accept treatment. (Although even with commitment the person may retain the right to refuse

certain kinds of treatment unless he or she is found incompetent to do so. See Part

X.C, above.)

In all cases, commitment requires a showing of a risk of serious harm to self or others unless

treatment is given. Commitment is more strictly time-limited, and does not affect the person’s

other civil rights in the way that guardianship often does. While it carries its own stigma, it

does not label the person as someone who is permanently incapacitated.

Commitment is in many cases more effective as a way to get treatment for the person than the

use of guardianship. A guardian can consent to treatment, but does not have the authority to

compel treatment over the person’s objection. See Part

X.C. Protective services and placement

orders, are primarily aimed at providing long-term support and protection, and not at forcing

short-term treatment over a person’s objection. In some cases, however, multiple failures to

cooperate with treatment, resulting in long-term need for support services or residential care,

may mean that guardianship and protective services or placement are more appropriate than

commitment.

A guardian’s role in commitment proceedings is often very limited. The person will have his or

her own attorney, who will look primarily to the person, as his or her client, to tell him or her

what to do. The petition is usually brought by the county corporation counsel, who again may

not follow guardian wishes. Courts vary on the extent to which a guardian is involved, but will

usually at least allow the guardian to state an opinion as to what should happen. The guardian

does, however, have a role to play in trying to identify and advocate for the most effective and

least restrictive services, in working with all the parties arrive at a service plan with which the

person will cooperate, and in making sure that the person’s rights and interests are protected

while he or she receives treatment and services.

XVII. LEARNING MORE AND GETTING ADVOCACY OR LEGAL ASSISTANCE

A. How can the reader find court forms, and why are they important?

The state court system has adopted forms to be used in guardianship proceedings, petitions for

protective services, and petitions for injunctions to prevent abuse, financial exploitation and

neglect of elder adults/adults at risk. People trying to bring cases to court are required to use

these forms. The forms cannot be changed, but additional information can be typed into the

forms, or added by attachment. Because the forms are designed to provide the court with the

information it needs to proceed and a template for setting out its decision, the forms provide

some guidance on what information will need to be gathered, and on what the court will

consider in making its decision. The forms for use in guardianship proceedings in circuit court

are found at:

http://www.wicourts.gov/forms1/circuit.htm#guard.

B. How can the reader learn more about guardianship, alternatives to guardianship and

protective services, or look up laws and rules?

• An excellent resource, both for learning about the basic responsibilities of being a guardian,

and for help in decision-making on difficult issues, is the state-funded

Guardianship

Support Center at the Coalition of Wisconsin Aging Groups. The Center is staffed by an

attorney who provides information and technical assistance to guardians of adults of any

age, by telephone 800.488.2596 ext. 314 or by e-mail through their website. In addition,

publications on a variety of issues of concern to guardians are available on the website.

• Readers interested in more detail on guardianship, protective services, and adult abuse

reporting and response, or in getting citations to legal source material, should refer to the

Chapter 55 Manual, described above in Part I.B).

• Disability Rights Wisconsin publishes A Guardian ad Litem’s Guide to Placing People

with Disabilities or Mental Illness In the Community.

• Parents of young adults with developmental disabilities may want to look at Making a

Difference: Thinking about Decision-Making Support in the Transition Process (by Roy

Froemming, Board for People with Developmental Disabilities, 2002). This book, written

before the guardianship changes in 2006, provides a model for families and individuals to

use in thinking about what kinds of decision-making support would help an individual,

whether guardianship is needed, and how extensive a guardianship should be.

• For information on health care decision-making:

o The Guardianship Support Center publishes detailed papers on medical consent

issues, and on use of advance directives to reduce the need for guardianship,

including Do-It-Yourself Consumer Packet Planning for Future Health Care

Decision-Making.

o Health Care: Answering Your Legal Questions is available on the State Bar of

Wisconsin website.

o The standard Wisconsin statutory forms for health care power of attorney forms

are available on the Wisconsin Department of Health Services website.

• For information on use of trusts, financial powers of attorney and representative payees:

o Use of trusts for people who rely on Medicaid and SSI is discussed in Ch. VIII of

One Step Ahead (see full cite in Part XVII.C).

Powers Of Attorney And Trusts: Duties and rights as agents and trustees (State

Bar of Wisconsin, 2008) is available on the State Bar website. This booklet provides

background for people who are considering taking on the role of trustee or agent

under a financial power of attorney.

Financial Independence: What you can expect from Payeeships, a publication

available on the Disability Rights Wisconsin website, answers questions regarding

Social Security representative payees.

o The standard Wisconsin

statutory forms for financial power of attorney forms are

available on the Wisconsin Department of Health Services website.

C. How can the reader learn more about community support services and public benefits

programs?

In order to carry out his or her responsibilities as guardian for a person who relies on public

benefits or long-term support services, the guardian will need to become familiar with the

programs, not only that the person is involved in, but also that might be available to assist the

person, but for which no application has yet been made. Community services are services that

help people live, learn and work in their own communities as independently as possible, while

at the same time helping the person to develop or retain skills. For people with significant

mental disabilities, they can often mean the difference between institutionalization and life in a

normal home and can provide meaningful, productive activities. Some of the sources of

information include:

• The Wisconsin Department of Health Services is the agency that administers Medicaid and

the long-term support services that serve adults in community residential and work settings.

Information available on this website includes information on guardianship, abuse and

neglect issues, benefit programs, long-term support programs for people in community

settings, including various types of residential care settings, and programs to help people

work without losing needed benefits. It all so contains information on Aging and Disability

Resource Centers that now serve a majority of Wisconsin counties.

• The Board for People with Developmental Disabilities has a website that contains an

extensive catalog of publications that can be downloaded or ordered in print version,

including many related to guardianship, transition and financial planning, housing, and

advocacy.

• Disability Rights Wisconsin is a statewide advocacy agency for children and adults with

disabilities. Their website has a variety of information on individual rights, benefits

programs, and protection from abuse and neglect, including the publication Understanding

The Funding System for People with Developmental Disabilities or People With Mental

Illness.

• Where the guardian is concerned with issues about access to public benefits, or about how a

particular event or decision will affect future benefits, he or she may be able to get benefits

counseling from one of several programs. Currently existing benefit counseling programs

include:

o Elder Benefit Specialists provide information and advocacy for people age 60 or

older on issues related to public benefits. Benefit specialists work with back-up

from staff attorneys. Elder benefic specialist services are available in every county.

Disability Benefit Specialists provide information and advocacy for people ages 18

through 59 on issues related to public benefits. Disability benefit specialists are

available in every county served by an

Aging and Disability Resource Center.

Health and Employment Counseling for people with disabilities who are working, or

planning to work is available through programs around Wisconsin. Programs are not

available in all counties, and some programs focus on people with certain types of

disabilities.

• One Step Ahead: Resource Planning for People with Disabilities Who Rely on

Supplemental Security Income and Medical Assistance, by Roy Froemming (Wisconsin

Board for People with Developmental Disabilities, 2009) is available on-line, or free hard

copies can be ordered, from WBPDD’s website. This booklet provides information on

financial eligibility requirements for programs that provide income, health care and support

services to people with disabilities, including ways that families and others can provide

supplemental assistance to people without affecting their essential benefits. Chapter VIII

provides information on supplemental needs trusts, and CH. IX discusses home ownership.

D. How can the reader find resources and referral sources for legal assistance?

• If the person has low income he or she may be eligible for free legal services. A list of legal

service agencies for people with low incomes, and specialized programs that provide

advocacy for certain groups or certain types of legal problems is on the Wisconsin State Bar

website. A person with a disability may be able to get advocacy assistance, regardless of

income, from Disability Rights Wisconsin, which is funded by the federal and state

governments to protect rights and provide advocacy in the benefits and service systems for

people with disabilities. All of these programs have limited resources, and have priorities

for the kinds of cases they will accept.

• If no legal services program is available, a private attorney may be willing to take on a case

that presents a clear denial of legal rights, either on a no-fee or reduced-fee basis, on a

contingency-fee basis, or in the hope of recovering attorney fees. Attorney fees may be

available in personal injury cases, discrimination and other civil rights cases, denials of

rights under Wis. Stat. § 51.61, and cases where counties or the state make clearly wrong

decisions in denying or reducing public benefits and long-term support services.

E. What are some other websites of potential interest to guardians?

Some places to get started on learning about disabilities and other available resources include

(this is not an exhaustive list):

•

The Wisconsin Department of Health Services website, in addition to information about

programs, support services and protective services, has information about various types of

disabilities.

• The Greater Wisconsin Chapter of the Alzheimer's Association website has information and

resources on aging and dementia.

• Movin’ Out is a non-profit organization that assists people with disabilities and their

families and guardians to find safe, accessible, affordable housing.

• Information on mental illness and resources and advocacy for people with mental illness

and their families is available from

NAMI Wisconsin and Mental Health America of

Wisconsin.

•

Family Voices of Wisconsin is a statewide network of families with children who have

special health care needs and/or disabilities. Their recently updated website contains

downloadable information related to community-based supports and Medicaid programs,

and a list of additional resources and links that may be helpful.

• Sponsored by the Waisman Center at the University of Wisconsin-Madison, Family Village

includes an extensive library of on-line resources for parents.

• For guardians concerned with transition from high school to adult services:

o The state Department of Public Instruction’s website contains links to transition-related

resources and the Wisconsin Statewide Transition Initiative, a project aimed at

improving results for students with disabilities as they transition from high school to

post high school.

o “Opening Doors to Self-Determination Skills: Planning for Life After High School,” a

24-page publication, which can be downloaded from

http://dpi.wi.gov/sped/pdf/tranopndrs-self-determination.pdf.